Well its a brilliant strategery, taking issues away from the Democrats by giving them everything they want. I think we can all agree now the Constitution is a dead letter.
Stranglehold on Speech
By Robert J. Samuelson
Wednesday, March 27, 2002; Page A21
Free speech is not selective speech, respectable speech or popular speech. Free speech does not exist unless it can include speech that you -- and perhaps most people -- despise. People must have, as individuals and as groups, the routine right to express themselves, even if their expressions offend. Somehow these truths escape the supporters of "campaign finance reform," whose crusade threatens free speech.
In the final 60 days before the 2000 election, more than 135,000 political advertisements were run by sponsors who weren't candidates or the political committees of candidates, reports the Brennan Center for Justice at New York University. The new campaign finance legislation -- known variously as McCain-Feingold and Shays-Meehan after its main Senate and House sponsors -- aims to remove many (if not most) of these ads by non-candidates from the air. Unless political advertisements aren't "speech," this represents a massive suppression of free speech. If you doubt that's the intent, listen to Senate supporters in recent debate.
"This bill . . . is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves," said Sen. Maria Cantwell (D-Wash.). "We must also close off the use of corporate and union treasury money used to fund ads influencing federal elections," said Sen. Olympia Snowe (R-Maine). "I cannot believe the Founding Fathers thought that the right to put the same commercial on 5,112 times was intended to be protected by the First Amendment," said Sen. Charles Schumer (D-N.Y.).
You might ask: What's wrong with groups -- the National Rifle Association, the Sierra Club -- running ads to praise friends or pillory foes? That's democracy. You might wonder whether the First Amendment makes exceptions for "negative" speech (Cantwell), speech intended to influence elections (Snowe) or repetitive speech (Schumer). It doesn't. Finally, you might rightly suspect a role for incumbent self-protection. Sen. Barbara Boxer (D-Calif.) confessed that she would be well rid of "those vicious attacks" (advertisements) in the final 60 days before an election.
Let's list just a few of McCain-Feingold's speech restrictions:
• Title I, Section 323(f), limits the right of state officeholders and candidates to run ads that "promote or attack a clearly identified candidate for federal office."
• Title II, Section 203, prohibits unions and companies from spending their money on "electioneering communications" -- defined as TV, cable and satellite ads that mention federal candidates -- within 60 days of a general election or 30 days of a primary.
• Title II, Section 204, applies the same prohibition to nonprofit groups, such as the NAACP and the National Right to Life Committee.
The last two sections could eliminate many outside TV ads, which span the political spectrum. In 2000, estimated the Brennan Center, about 44 percent were from business groups, 27 percent from groups favoring women's right to abortion and 14 percent from the AFL-CIO. Contrast the complex rules with the First Amendment's clarity: "Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, or to petition the government for a redress of grievances."
In truth, "campaign finance reform" violates this constitutional guarantee in ways that transcend McCain-Feingold. Reformers want to limit political contributions and campaign spending, which purportedly "corrupt" government. In Buckley v. Valeo (1976), the Supreme Court approved limits on campaign contributions but not spending. Large contributions might unduly influence politicians, the court said. But limiting campaign spending -- by candidates or outsiders -- would restrict their free speech. In practice, the court's distinction hasn't worked.
Politics is about interest groups -- of both left and right -- cooperating with sympathetic candidates and officeholders. But close cooperation erases the distinction between a contribution and campaign spending. If an interest group runs a political ad at a candidate's request, then the money for the ad amounts to a donation to the candidate. Contribution limits become meaningless. The cure is to outlaw cooperation. But that destroys free speech. People can't talk to senators, representatives, candidates or their staffs without flirting with illegal cooperation. Groups can't lobby without running the same risk.
The Federal Election Commission has tried to disarm the dilemma with rules defining permissible "coordination," the legal term for cooperation. But the dilemma can't be disarmed: Lax rules are worthless; strict rules subvert the rights of free speech and association. McCain-Feingold simply compounds the basic contradiction.
Only the Supreme Court can end the charade. When it considers McCain-Feingold, it should declare most campaign finance regulation unconstitutional. The alleged evils of money in politics are now overshadowed by the evils of strangling free speech.
Free speech must be a concept that ordinary people can grasp in most ordinary circumstances. It must not become a lawyerly collection of qualifications, footnotes and regulations, and that is where the campaign finance crusade is leading.
© 2002 The Washington Post Company
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