Where they stand


Public positions offer insight into presidential candidates' views on free expression





It might be impossible to predict just how the Democratic and Republican presidential candidates would act as commander in chief, but looking at what Sen. John McCain and Sen. Barack Obama have done in their careers could give potential voters a clue.

Although many campaigns focus on separating the two major presidential candidates, on some First Amendment and other press-related issues, McCain and Obama agree with each other.

In April 2006, the two candidates supported the Federal Funding Accountability and Transparency Act of 2006. The law was passed unanimously in the Senate and was signed by President Bush in September of that year.

The law called for the government to develop a Web site that would disclose grants, loans and contracts doled out by the government. The Web site, www.usaspending.gov, keeps track not only of how much money is given out by the federal government but also which companies receive it.

Both senators have said they would support the Free Flow of Information Act, a federal shield law to protect journalists from having to reveal confidential and anonymous sources in federal court. Although 32 states and the District of Columbia have statutory shield law protections, they do not protect journalists from federal subpoenas.Obama has signed on to the bill as a cosponsor. McCain, although he supports the bill, has expressed deep reservations.

“I must confess there have been times when I worry that the press’ interest in getting a scoop occasionally conflicts with other important priorities, even the first concern of every American: the security of our nation,” McCain said in April.

Both senators also supported a 2006 bill that raised the maximum fine a broadcaster could receive for airing obscene or indecent material, such as curse words. McCain cosponsored the legislation that allowed the FCC to fine broadcast outlets up to $325,000 for every violation. The Broadcast Decency Enforcement Act of 2005 passed unanimously in the Senate and was signed into law on June 15, 2006.

McCain-Feingold

One speech-related piece of legislation that McCain, in particular, has been criticized for is his sponsorship of the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act.

McCain-Feingold amended the Federal Election Campaign Act of 1971, which among other things regulates how much candidates may spend if they decide to accept public financing for their campaigns. McCain-Feingold added new restrictions on the amounts and sources of money that campaigns, party committees and independent groups may raise and spend.

Several advocacy groups called the law a violation of the First Amendment.

The U.S. Supreme Court has struck down several provisions of the law as unconstitutional. In the 2003 case McConnell v. Federal Election Commission, the Court said a provision that barred people under 18 years old from contributing to political campaigns violated their First Amendment rights.

The most high-profile challenges involve the law’s limits on how private groups and individuals may spend money during a political campaign.

In Federal Election Commission v. Wisconsin Right to Life, Inc. the U.S. Supreme Court ruled in 2007 that a portion of section 203 in McCain-Feingold violated the First Amendment as applied in certain contexts.

The provision prohibited independent groups from running advertisements that use a candidate’s name in connection with a specific issue within 30 days of a primary election and 60 days from a general election unless they do so through a registered political action committee. These PACs are subject to Federal Election Commission regulations.

This year, the Supreme Court struck down another provision of the law, known as the “millionaire’s amendment,” in Davis v. Federal Election Commission. The court said the McCain-Feingold Act illegally disadvantaged political candidates who use their own money to run for office by allowing their opponents to raise money above the usual limits.

The case reaffirms the court precedent of equating money spent in a campaign to political speech. In July, the FEC said it would stop enforcing the millionaire’s amendment to comply with the Supreme Court’s ruling.

In June, Obama decided to opt out of the public financing system McCain had attempted to regulate, choosing to fund his campaign entirely using privately raised funds, although he still is subject to contribution limits and disclosure requirements. Obama said his decision was a way to avoid being beholden to outside groups and wealthy individuals.

“The public financing of presidential elections as it exists today is broken, and we face opponents who’ve become masters at gaming this broken system,” Obama said.


Fall 2008, reports