In a 5-4 ruling this week, the Supreme Court deemed a key part of the McCain Feingold Act unconstitutional. BYU Political scientist David Magleby explains why
the decision is likely to open the floodgates of ad spending by interest groups.
BROOKE GLADSTONE: This week, John Edwards launched TV spots in the Granite State, and Barack Obama entered the Iowa airwaves. We know who's paying for those ads. The candidates themselves claim responsibility at the end of each one.
Less transparent are the so-called "issue ads," paid for by groups who claim to be supporting a specific policy position, not a candidate. When those ads started showing up in the mid-'90s, they were mostly unregulated. But in 2002, the McCain Feingold Act ruled that if an ad funded by, say, a corporation or a union mentioned a specific candidate, it was an election ad, not an issue ad, and therefore could not run in the two months leading up to a general election. That limited the impact those groups could have.
This week, the Supreme Court ruled that ban unconstitutional, saying that unions and corporations have a First Amendment right to spend their money however and whenever they want, as long as they don't say vote for candidate X.
Political scientist David Magleby says the decision will turn the clock back to the bad old days, when election spots disguised as issue ads and unregulated party money, soft money, flooded the airwaves with negativity. DAVID MAGLEBY: Before McCain Feingold, it was the Wild West, and soft money party spending, when combined with issue advocacy, equaled or often was greater than what the candidates were spending.
In that sense, then, the candidates lost control of their own messages. They were being defined to the voters by corporations, unions and money coming into the parties. It was outside of their control. BROOKE GLADSTONE: Okay. That was before. Then after McCain Feingold? DAVID MAGLEBY: What was different in 2004 and 2006 as a result of McCain Feingold was individuals, you and me and anybody else who writes a check to a candidate, became much, much more important to the candidates. McCain Feingold doubled the amount of money that candidates could take from individuals. It substituted issue advocacy, or soft money, and, to some extent, PAC money for individual money.
And what no one expected, but what has happened, is individuals have stepped up in a major way. And you're seeing it already in this cycle in the Presidential race, where they're contributing record-setting amounts to the candidates. And that money is fully disclosed and it's limited. BROOKE GLADSTONE: So how will things change now after this Supreme Court decision? DAVID MAGLEBY: The winning candidate in an election is going to often be much more appreciative of his friends in the corporate sector or the unions than he would have been before, because their spending issue advocacy money to attack his opponent may well help elect him.
So this decision substantially increases the power and influence of corporations and unions and it substantially diminishes the power of individual contributors. BROOKE GLADSTONE: And does all this hinge on how we go about distinguishing between what is an election ad and what is an issue ad? Because there's always been a problem in distinguishing between those ads, right? There aren't any issues during an election season that are separate from candidates. DAVID MAGLEBY: Exactly. And it doesn't make sense that unions and corporations would want to advertise about issues not related to the election in that season, paying these outrageous rates for them, if it wasn't about the election also. This is about the election or the defeat of a candidate.
And that's another point that I think is critical. Virtually all of this advertising is negative. This is attack ads, and it's often irresponsible. And it can be that way because the groups, that is, unions or corporations or other groups, can hide behind an innocuous name.
So Republicans for Clean Air attacked John McCain on the event of the New York primary, and no one knew who they were. We later learned that they're two brothers from Texas named Wyly who bankrolled that themselves. But they named themselves Republicans for Clean Air.
What's happening now is you're going to see groups attacking candidates. Politicians will say what we saw in the era of issue advocacy, '96 through 2002, that's not me saying that about my opponent, but I do think my opponent ought to answer the charges. BROOKE GLADSTONE: But we did see it in 2004. It didn't go away. You had the so-called 5/27 groups, like MoveOn.org and the Swift Boat Veterans for Truth. And now you've got the Internet, where people can craft their own ads and put them up there. I mean, hasn't the candidate really lost control of his or her message already? DAVID MAGLEBY: They are substantially at the mercy of 5/27 groups. But that just exponentially increased with the Supreme Court ruling, because that now allows corporate and union treasury money, which could not to go 5/27s, to enter the playing field as it did in '98, 2000, 2002.
So what I'm saying to you is there are going to be far more resources to Swift Boat somebody than there were in 2004. BROOKE GLADSTONE: You know, David, a lot of people applaud this decision. People who wanted this change ranged from, you know, the ACLU to the National Rifle Association. They see it as a simple free speech issue, and they say the more we hear and talk about public policy the better. Obviously, other people say this doesn't make speech free or it makes it more expensive.
But what do you think of this line of thinking which is being presented by people with whom you might normally agree? DAVID MAGLEBY: Well, I think there is a balancing act that has to happen in a democracy. And I think the efforts to regulate corporate and union treasury funds were wise, because those entities have so much access to resources well beyond what other groups and individuals have that they can drown out everyone else's voice. And there is evidence to believe, from the '96 through the 2002 cycles, that they're prepared to try to do so when they really care about something.
So there's multiple values on the table here, one of which is free speech, but another is the viability of our electoral democracy. BROOKE GLADSTONE: David, thank you very much. DAVID MAGLEBY: My pleasure. BROOKE GLADSTONE: David Magleby is a political science professor at Brigham Young University. [MUSIC UP AND UNDER] CHRIS BANNON: Coming up, yet another rhetorical shift in the telling of the Iraq war, and later, two undercover reporters come out of the shadows. BROOKE GLADSTONE: This is On the Media from NPR. [MUSIC UP AND UNDER]