As much as I hate to disagree with Ted Frank and the American Enterprise Institute gang over at Overlawyered, and not to suggest that they have any agenda at all, I’m constrained to pick a nit.  It seems that John McCain’s big Super Tuesday win over Millionaire Mitt Romney is proof positive that the Bipartisan Campaign Reform Act of 2002 (which has some tenuous connection to McCain) was unnecessary.  Or,  as Ted puts it,

John McCain’s decisive victory yesterday is simultaneously a decisive repudiation of the campaign finance law he is most known for.

So there, McCain.  In your face!  But wait.  Why is that you ask?  Ted explains:

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.

The post is a little shy on attribution for this “premise”, but I don’t recall its basis being that money can “fool” voters.  My recollection, as discussed in  McConnell v. Federal Election Commission (2003), was that limited impact on free speech rights was justified by the legitimate government interest in preventing the corruption, and appearance of corruption, of candidates for and holders of public office who could be influenced by significant financial donations. 

Is that the same thing as what Ted said?  Why no, I don’t believe it is.  From where I sit, candidates can use money to fool voters regardless of where the money comes from.  The “fooling” part is where the money goes out of the system.  The McCain-Feingold part is where the money come into the system.  There seems to be a disagreement of anatomy here.

The law of which Ted speaks is directed toward those individuals and corporations who would contribute such large amounts that they could buy special influence with money-hungry candidates.  That  FEC v. Wisconsin Right to Life (2007) permits candidates to use as much of their own money as they want doesn’t seem to implicate the same interests, since the candidate’s use of his own funds won’t give him any greater influence with himself, certain types of schizophrenia notwithstanding.

So what then does McCain’s win over Mitt mean?  That Republican primary voters prefer McCain?  Maybe even because he tried to put the breaks on special interests buying candidates?  And maybe no amount of Mitt’s money was going to “fool” the voters enough to change this?  It could happen.