So Long, Free Speech?

An all-too-true article by Robert J. Samuelson at WaPo, Aug. 25 (quoted ellipses in original):

The presidential campaign has confirmed that, under the guise of "campaign finance reform," Congress and the Supreme Court have repealed large parts of the First Amendment. They have simply discarded what were once considered constitutional rights of free speech and political association. It is not that these rights have vanished. But they are no longer constitutional guarantees. They're governed by limits and qualifications imposed by Congress, the courts, state legislatures, regulatory agencies — and lawyers' interpretations of all of the above....

The First Amendment says that Congress "shall make no law... abridging the freedom of speech, or... the right of the people peaceably to assemble, and to petition the Government" (that's "political association''). The campaign finance laws, the latest being McCain-Feingold, blatantly violate these prohibitions. The Supreme Court has tried to evade the contradiction. It has allowed limits on federal campaign contributions. It justifies the limits as preventing "corruption" or "the appearance of corruption." But the court has rejected limits on overall campaign spending by candidates, parties or groups. Limiting spending, the court says, would violate free speech. Spending enables candidates to reach voters through TV and other media.

Unfortunately, this artful distinction doesn't work. If groups can spend any amount on campaigns, their spending can easily become unlimited contributions. All they need to do is ask the campaign how their money ought to be spent — on what TV ads, for example. To prevent this, the FEC imposes restrictions on "coordination" between candidates, parties and groups making "independent expenditures." John Kerry alleges that the Swift Boat Veterans and the Bush campaign "coordinated" illegally. Republicans see similar ties between Kerry and Democratic 527s.

But "coordination" is really "speech" and "political association." It's talking and planning among people who want to elect or defeat the same candidates. There's an indestructible inconsistency between the language of the First Amendment and campaign finance laws. Why shouldn't veterans coordinate with Bush? Why shouldn't Democratic 527s coordinate with Kerry? The Supreme Court upholds the campaign finance laws simply by ignoring the First Amendment's language....

The media poorly describe what's happening. Campaign finance reform is a respectable cause. It's inconvenient to say that the First Amendment is being scalped. Few do. The New York Times recently ran a story on two campaign lawyers — one Democratic, one Republican — who bring cases before the FEC to bend "the complex rules to their clients' maximum benefit." The story barely hinted that, once candidates need lawyers and rulings to say what they can do, their constitutional protections have disappeared....

See also Too Late Now.

Lane Core Jr. CIW P — Fri. 08/27/04 05:33:11 PM
Categorized as Political.