McCain-Feingold is based on the premise that money used to purchase speech distorts the political process because candidates can use money to fool voters, and therefore the speech purchased by money must be regulated. First Amendment limitations that not even the O’Connor Court was willing to override, however, prevented McCain-Feingold from reaching the spending of personal funds to self-promote. Thus, multi-millionaire Mitt Romney, because he was able to spend millions of dollars of his own money to promote his message would, according to the premises of McCain-Feingold, prevent candidates without those millions from winning elections. If those premises are correct. Which is why John McCain’s decisive victory yesterday is simultaneously a decisive repudiation of the campaign finance law he is most known for.
Update: Scott Greenfield protests that McCain-Feingold only has to do with “corruption,” not “money.” That is an excessively narrow reading of the Supreme Court’s abrogation of the First Amendment in McConnell v. FEC, where the Court complained, “The record here reflects that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the relevant period. Congress justifiably concluded that remedial legislation was needed to stanch that flow of money” and worried about “so-called ‘hard money’ contributions made for the purpose of influencing an election for federal office.” But, notwithstanding these rationalizations for criminalizing political speech, voters are not sheep who thoughtlessly cast their ballots for the highest bidder. (Separately: Do I have an “agenda,” as Greenfield insinuates? Absolutely: it bugs me when Congress, the President, and the Supreme Court fail to adhere to their sworn duty to uphold the Constitution.)
But even if Greenfield were right that we should ignore these explicit statements, and focus only on the corruption concern, my point remains that McCain’s performance refutes McCain-Feingold. I gave McCain $1000 in 2000 and another $2300 in this campaign, but all that money from me doesn’t seem to have changed McCain’s opinion one bit. Which suggests that McCain-Feingold’s 1-to-1 relationship between “money” and “corruption” is overinclusive. Voters can judge for themselves when money reflects support and when money reflects a quid pro quo or pernicious influence—as Greenfield implicitly acknowledges when he suggests Republican voters might have preferred McCain because of his record of being above special interests.