Censoring America: An Attempt to Squelch Ads for a Controversial New Film Illustrates How "Campaign Finance Reform" Has Created a New Corps of Federal Speech Police

Article excerpt

On March 27, 2002, with a studious lack of fanfare, President Bush signed into law the "Bipartisan Campaign Finance Reform Act" (or BCFRA), a measure supposedly intended to relieve politics of the corrupting influence of corporate money. Rather than affixing his signature to the legislation in an elaborate Rose Garden ceremony, surrounded by the bill's congressional sponsors and other invited guests, Mr. Bush quietly penned his name on the document away from public scrutiny, announcing the action after the fact in a White House press release.

Why did President Bush uncharacteristically avoid taking credit for signing BCFRA into law? After all, the bill-signing ceremony is a high-profile exercise of presidential power and a prime opportunity to cultivate congressional allies. It's reasonable to conclude that President Bush's political handlers regarded BCFRA's enactment as shameful in some sense, and with good reason: The measure is an assault on freedom of speech in the interest of protecting the political class. For good reason the measure has been described as the "incumbent protection act."

Attacking the Constitution's Core

Mr. Bush's decision to sign the BCFRA bill prompted widespread disappointment and criticism from many conservative commentators and supporters. Prominent among the BCFRA law's conservative opponents was radio impresario Rush Limbaugh, who pointed out that it could be used to define his daily political commentaries as "electioneering" and thus make his show subject to federal regulation.

Under the BCFRA, independent citizen groups are forbidden by law to air advertisements on TV and radio mentioning candidates by name during a period of 60 days prior to a general election, or 30 days before a primary. Political Action Committees (PACs) are permitted to do so, but under extremely invasive and restrictive federal regulations. Those found in violation of the law's provisions--which are as detailed and opaque as the tax code--are liable to huge punitive fines. Since public attention to politics peaks during those periods, and since the major media are exempt from BCFRA, the law is designed to silence independent voices from the political discourse precisely when they can be most effective.

As he signed BCFRA, President Bush, who had promised in his 2000 campaign to veto any "campaign reform measure" that threatened free speech, admitted that "certain provisions" of the law "present serious constitutional concerns." Breezily ignoring his sworn duty to defend the Constitution, Mr. Bush averred that he expected the Supreme Court to "resolve these legitimate legal questions as appropriate by law."

When the Supreme Court took up a challenge to the measure, several conservative groups, led by a Beltway GOP front group called Citizens United, filed an amicus curiae (friend of the court) brief opposing the measure. The BCFRA measure, contended the brief, "abridges the freedom of the press by imposing discriminatory licensing regulations, editorial controls, and significant economic burdens and penalties upon political parties, political committees, candidates for federal office and their authorized campaign committees" It likewise fastens similar unconstitutional burdens on "broadcast, satellite and cable media companies, nonmedia companies and associations, [and] nonprofit organizations and individuals," who, unlike elite media covered by an exemption, are subject to scrutiny by the Federal Election Commission (FEC) during election campaigns.

Simply put, private entities not granted an exemption under BCFRA could find themselves effectively under the editorial control of the FEC during federal political campaigns. As the brief further pointed out, the regulatory burdens and potential penalties imposed by the FEC have the effect of "shielding [incumbent] officeholders from uninhibited, robust, and wide-open debate on public issues by a grant of censorial power over the people reminiscent of the power exercised by the infamous Star Chamber to regulate elections and license the press to ensure government by royal favorites in 17th-century England. …