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A Dagger in the First Amendment

By Robert Samuelson

"Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." -- The First Amendment

WASHINGTON -- The Fourth of July is an apt moment to reflect upon one of the great underreported stories of our time: the rise of regulated speech. Glance at the First Amendment, but do not think it still applies. Large bodies of political speech are now governed by laws, agency regulations, court decisions and lawyerly interpretations. Speech has become un-free.

This does not mean that we don't have vigorous debate or that most points of view aren't represented. But in and around elections, what can be said, by whom and under what circumstances, is now a tangled web of legal qualifications -- all justified as campaign finance "reform."

As proof, consider the Supreme Court's recent decision in Federal Election Commission v. Wisconsin Right to Life Inc. Don't try to understand it; you won't. That's the point. What's permissible or impermissible speech is now murky. Plain political speech has mushroomed into many subcategories --"issue speech," "electioneering communications," "express advocacy" and "non-express advocacy," among others. Different legal standards apply.

It's absurd to treat "issue speech" (broadly: trying to influence a governmental outcome) as different from "election speech" (broadly: trying to influence a campaign outcome). In democracies, people and groups express their views on issues by trying to elect leaders who agree. But campaign finance law insists on this distinction because without it, curbing campaign contributions would be impossible as a practical matter.

In 2004, Wisconsin Right to Life began running ads urging the state's two senators to oppose a filibuster involving President Bush's federal judge nominees. But the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold after its main sponsors, prohibits some "issue ads" 30 days before a primary and 60 days before a general election. Because one of the senators -- Russell Feingold -- was running in a primary, the ads had to stop in mid-August.

Never mind the coincidence that McCain-Feingold had the effect of protecting one of its sponsors from criticism. Focus merely on the law's manipulation of free speech. The ads would have been legal if:

-- They had run in newspapers, been delivered over the Internet or used in direct mail or phone campaigns (the law's limits apply only to TV, radio and satellite transmission).

-- Neither senator was up for re-election.

-- Wisconsin Right to Life had used a political action committee to finance the ads rather than corporate contributions.

Such are regulated speech's contortions. They will mount. Wisconsin Right to Life sued, arguing that its First Amendment rights had been abridged even though the Supreme Court had previously upheld McCain-Feingold's constitutionality. Well, in a 5-4 decision, the court didn't overturn the law's constitutionality, but agreed that the standard for permissible pre-election "issue ads" must be broadened. The trouble is that the new standard, set by Chief Justice John Roberts, seems unclear even to some fellow justices. Confusion and litigation will continue.

Questions arise. Why is the expansion of regulated speech so little reported and appreciated? Has it brought any public benefits?

The answer to the first is simple: By and large, the press regards campaign finance "reform" as a worthy crusade. Money in politics is bad; big money, however defined, is worse. It's corrupt -- or might be. Curb it. Overlook or minimize the attendant restrictions on political speech. The press jealously guards its own free speech. It's more casual about everyone else's.

As to the second, the answer is: few, if any. Campaign finance "reform" hasn't cured public cynicism about money in politics -- the main legal justification for First Amendment restrictions -- and can't, because Americans routinely feel cynical about politics. But the objective basis here for their cynicism is weak.

Although it's common to think that politicians sell their votes to big contributors, the overwhelming conclusion of academic research is that in roll call votes, members of Congress follow their philosophical views and constituents' interests, says Michael Malbin, director of the nonpartisan Campaign Finance Institute. Contributions, he says, may have more influence at the committee level, where legislation is drafted. Still, America is so wealthy that almost any cause and interest (business, labor, the environment, poverty) can amass a competitive war chest.

Politics requires money. Try to purge politics of money and politics is crippled. Free speech's value is not only a diversity of views; it is also the ability of people to contest those views. The only desirable controls are contribution disclosures. Let people see who's giving to whom. Free speech involves no right to secret speech. Otherwise, recognize that campaign finance "reform" is a dagger in the First Amendment.

(c) 2007, The Washington Post Writers Group


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