Mickey Kaus has discovered another loophole in the recently-passed McCain-Feingold campaign finance reform law. His last discovery, which I discussed a while ago, was an obscure, complicated hack that involved a wealthy contributor pretending to be an electoral opponent. The new loophole, however, is so wide and straightforward that it completely changes the character of the law--turning it from an appalling-but-incomplete limitation on legitimate political speech into a fairly benign--even useful--"clean campaigns" measure.
According to Kaus, the law does not actually prevent independent organizations from purchasing campaign advertising in the runup to an election. Only corporations and labor unions fall under this prohibition; unincorporated organizations do not. And as Kaus points out, the main purpose of incorporation is to shield individual co-owners from legal liability for the action of the corporation. Kaus neglects only the last step of the argument: that the main effect of the new law is therefore to require political advertisers to accept personal legal accountability for their speech. In other words, advertise all you like, but if you engage in last-minute libelous accusations, you can't protect yourself from lawsuits. That's not only not a threat to free speech--it sounds like excellent public policy. So why isn't the law being celebrated as a victory for accountability in campaigning, instead of being both praised and lambasted as a restriction on campaign spending?