The Right to Life Lobby vs. McCain
They're not fighting about abortion.
Apr 30, 2007, Vol. 12, No. 31 • By CHARLOTTE ALLEN
Arizona senator John McCain, currently a bit behind Rudy Giuliani as Republicans' favorite presidential choice for 2008, is far and away the most consistently anti-abortion of all the top contenders. During his 20 years in the Senate (plus four in the House), he has never failed to cast his vote in favor of whatever abortion restrictions are arguably permitted under Roe v. Wade: bans against partial-birth abortion, abortions on military bases, transporting minors across state lines to obtain abortions behind their parents' backs, and government funding for abortion both in the United States and abroad (all but the transporting-minors bill have become federal law). In addition, McCain has voted to confirm every "strict constructionist" judge (that is, disinclined to find, à la Roe, a right to abortion and related activities enshrined in the Constitution) appointed by the various Republican presidents who have served during his tenure, including Robert Bork for the Supreme Court. In February McCain declared that Roe v. Wade ought to be overturned, and he was one of 35 senators who signed an open letter to President Bush earlier this year pledging their support for any veto by Bush of efforts by the Democratic-controlled Congress to change federal law on abortion. Planned Parenthood and NARAL Pro-Choice America, the leading abortion-rights advocacy groups, detest McCain and consistently award him ratings of absolute zero on their scorecards.
Nonetheless, McCain has a major problem with the nation's largest and most influential anti-abortion advocacy organization, the National Right to Life Committee. And the source of that problem is . . . not abortion at all. It's the McCain-Feingold Act, that set of restrictions on political advertising during election seasons that McCain (along with a number of Democrats) started pushing in 1995 and succeeded in enacting into federal law in 2002.
The National Right to Life Committee (NRLC) regards McCain-Feingold as a major hindrance to its mission of pro-life advocacy--and, pari passu, McCain himself as something close to a personal enemy. A so-far-successful constitutional challenge to a key portion of McCain-Feingold mounted by an NRLC affiliate, Wisconsin Right to Life, is pending in the Supreme Court, with oral argument set for Wednesday, April 25. At issue is a provision banning ads that mention the names of candidates for public office within certain "blackout periods" ranging from 30 to 60 days before an election--if funds from corporations or unions are used to pay for the ads. Abortion is the kind of neuralgic issue that most large corporations--the kind of influence-peddlers that are presumably the target of McCain-Feingold--tend to shy away from, and most donors to the NRLC and its affiliates are individuals of modest means and strong religious beliefs. Nonetheless, a small percentage of the NRLC's donations--a little over 2 percent--come from corporations (including nonprofits) and religious organizations (the figure is from the year 2003, when the NRLC took in $13.6 million in contributions, including $295,124 from corporations and organizations, according to its lawyers).
Wisconsin Right to Life argues that the blackouts prevented it from broadcasting ads in 2004 criticizing by name the state's two Democratic senators, Herb Kohl and Russ Feingold, for filibustering Bush's strict-constructionist judicial nominees--at a time when Feingold (the other named sponsor of McCain-Feingold, as it happens) was running for reelection. Although the Supreme Court upheld the constitutionality of McCain-Feingold on its face by a 5-4 vote in 2003 in a different lawsuit, Wisconsin Right to Life won a unanimous Supreme Court ruling last year allowing it to challenge the law's application to specific instances and then persuaded a special three-judge federal district court in December that the blackout period unconstitutionally impinged upon Wisconsin Right to Life's First Amendment right to engage in grassroots issue advocacy on behalf of its members.
Furthermore, the composition of the Supreme Court has tellingly changed, with the replacement of Sandra Day O'Connor, who cowrote the majority opinion in 2003, by the more clearly conservative Samuel Alito Jr. Only if the law's defenders can persuade five justices that Wisconsin Right to Life's 2004 ads were actually an underhanded stab at Feingold, or that the NRLC is a stalking horse for other, presumably more malign corporate interests (and thus, like them, should be required to run its ads through a PAC, which would exempt it from the blackout but subject it to closer regulation), does it seem likely that Wisconsin Right to Life won't prevail on at least some narrow ground.
It is amazing how bitter the McCain-Feingold Act has made relations between McCain and the NRLC. The organization began implicitly backing George W. Bush over McCain early in the 2000 primary season, even though Bush didn't have much of a track record on abortion back then. Despite McCain's solid history of anti-abortion votes in the House and Senate, the NRLC made much of several statements he had made in 1999 indicating he might be willing to waffle on Roe v. Wade (McCain claimed to have been misinterpreted by the press). The NRLC's executive director, David O'Steen, declared that the remarks, which expressed sympathy for the dangers to women of illegal abortions, could well have been made by Kate Michelman, then the president of NARAL. The organization's anti-McCain animus reached a peak right before the crucial South Carolina primary (which McCain lost, clearing the field for Bush) when South Carolina Citizens for Life and the NRLC began running ads saying, "If you want a strongly pro-life president . . . don't support John McCain."
So far this presidential election cycle, the NRLC has not been so overtly hostile to McCain, and it issued a press release praising him for his recent strong stand on Roe. Still, it is pretty clear that the NRLC (through its PAC) is never going to endorse McCain in the 2008 primaries, and the NRLC's online scorecard for McCain's voting record over the past decade is besmirched with bright red X's representing his deviations from NRLC positions and making McCain look, at first glance, as though he occasionally favors the butchery of unborn babies. It is only on second glance that the voter realizes the vast majority of those red X's represent McCain's votes on McCain-Feingold. It is also true, as the scorecard indicates, that McCain supports federal funding of embryo-destroying stem cell research--a position that makes most pro-lifers blanch--but so, to take one example, does Utah's otherwise abortion-opposing Republican Sen. Orrin Hatch. Yet because Hatch has always voted nay on McCain-Feingold, his NRLC scorecard looks a lot more pro-life than McCain's.
Perhaps that is only fair. "The National Right to Life Committee has always considered campaign finance to be part of its agenda," says James Bopp Jr., a Terre Haute, Ind., lawyer whose James Madison Center for Free Speech has represented several anti-abortion challengers to McCain-Feingold, including Wisconsin Right to Life. "If they can't effectively advocate on pro-life issues, if they can't even raise those issues, that's a threat to their ability to engage in pro-life activity." Bopp says that he personally intends to support recent Massachusetts governor Mitt Romney for 2008; Romney once adamantly backed abortion rights but says he had a conversion experience in 2004 that turned him against both Roe and most embryonic stem-cell research. Douglas Johnson, the NRLC's legislative director, declined to respond to repeated requests to interview him about his organization's current views on McCain.
For his part, McCain has thrown himself into the McCain-Feingold litigation with unusual fervor, personally intervening in Wisconsin Right to Life's lawsuit rather than relying solely on the lawyers for the Federal Election Commission and Justice Department who are charged with defending the constitutionality of federal election laws. "It is not a common, ordinary occurrence" for sponsors of federal legislation to become involved in litigation over their handiwork, notes Bradley A. Smith, a law professor at Capital University in Columbus, Ohio, who served as FEC chairman during Bush's first term and is a vocal opponent of McCain-Feingold as well as most other regulation of elections. "How rare it is I can't tell you, but it's more common just to file an amicus [friend-of-the-court] brief."
Smith speculates that McCain might not have trusted Bush administration lawyers to provide a sufficiently vigorous defense of his law, given that Bush expressed doubts about the constitutionality of some parts of McCain-Feingold before signing it in 2002. One advantage of such an intervention is that the defenders of McCain-Feingold got two legal briefs instead of one in which to present their case to the Supreme Court (Bopp, however, was allowed to file an extra-long brief that partly makes up for that advantage).
Furthermore, McCain and three House members who joined him in the intervention are getting their legal representation free of charge, from Seth Waxman, who served as U.S. solicitor general under President Bill Clinton and is now a partner at the prestigious law firm of Wilmer Cutler Pickering Hale & Dorr--because campaign finance reform is one of those issues that is irresistible to the well-heeled liberal lawyers who populate blue-chip firms seeking to look good by filling their pro bono portfolios. Indeed, McCain-Feingold has been an ideological money-magnet for liberal good-government groups, with nonprofits such as the Pew Charitable Trusts, the Carnegie Corporation, and New York University's Brennan Center for Justice pouring funds and free research into getting the law passed and then defending it in court.
Certainly, there's a lot to loathe about McCain-Feingold, especially if you are, as the NRLC is, identified with a "religious right" that supposedly yearns to impose its theocratic views upon secular American democracy. "There's an inherent suspicion of them in the [election-law] enforcement community," notes Smith, who says that when he first arrived at the FEC as a commissioner in 2000, he discovered in the agency's library an entire bookshelf of political tracts explaining in condescending terms what religious conservatives are supposed to be all about. The very aim of campaign finance laws is to restrict political expression (all in the name of battling evil corporations), either by limiting expenditures or by regulating the timing of political speech, as McCain-Feingold attempts to do. In addition, ever since the first campaign finance laws were passed during the 1970s, they have been Maginot Lines of pseudo-reform, notoriously easy to circumvent. McCain-Feingold was a response to loopholes in the Federal Election Campaign Act of 1971 through which soft money flowed like the Potomac River to the Chesapeake Bay. Yet no sooner was the ink dry on McCain-Feingold than special-interest organizations ranging from Swift Boat Veterans for Truth to MoveOn.org discovered the joys of becoming a "527" group--named after a provision of the Internal Revenue Code that allows freelance tax-exempt groups to engage in all the political advertising they like as long as they steer clear of endorsing or opposing specific candidates. Now, the move is on in this Democratic Congress to reform the reforms by curbing the 527s. McCain, to his credit, has at least supported an amendment that squelched a provision in the latest bill that would have required organizations such as the NRLC to register as lobbyists and submit to onerous reporting requirements.
This leads back to the fundamental question: Why shouldn't pro-lifers at least pay due respect to McCain's quarter-century of pro-life voting and support in Congress? He certainly beats Giuliani. The lapsed Catholic, thrice-married, unabashedly pro-abortion-rights former New York mayor was actually managing to squeak by as barely, just barely, acceptable to social conservatives who otherwise liked his crime-intolerant, post-9/11 tough-guy style by promising to appoint strict constructionist judges--until April 4, when he told a CNN reporter that he supported federal funding for abortion (anathema to fiscal as well as social conservatives).
As for Romney, he may enjoy James Bopp's support, but as late as 2002 (and certainly in 1994, when he tried unsuccessfully to unseat Democratic senator Ted Kennedy) Romney was endorsing a woman's "right to choose," supporting easy access to the "morning-after" pill (viewed by right-to-lifers as an abortifacient because it prevents implantation of a fertilized egg) and backing "comprehensive" (that is, contraceptive-centric) sex education for youngsters in public schools--not to mention taking a liberal stance on gay rights and openly gay military personnel. Fred Thompson, for his part, was not known as a pro-lifer during his 1994 Senate race, although he voted consistently for abortion restrictions during his eight years in the Senate, and now says he supports overturning Roe.
Votes in Congress do count for something, after all. On April 18 the Supreme Court upheld the federal ban on partial-birth abortion in a momentous 5-4 decision. That gruesome and not-uncommon procedure is now illegal--thanks in part to the support of John McCain (and in some respects to that of Thompson, who also voted for such a ban, although he was no longer in the Senate by the time the 2003 law at issue passed). Yes, McCain will be forever associated with a silly and destructive campaign-finance law, but abortion opponents, even the National Right to Life Committee, have something genuine for which to thank him.
Charlotte Allen, a writer in Washington, D.C., is the author, most recently, of The Human Christ.