The Magazine

The Right to Life Lobby vs. McCain

They're not fighting about abortion.

Apr 30, 2007, Vol. 12, No. 31 • By CHARLOTTE ALLEN
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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).