Freedom of Speech Now Illegal

By Roane, Spencer | The American Spectator, February 2004 | Go to article overview

Freedom of Speech Now Illegal

Roane, Spencer, The American Spectator

Pay no attention to First Amendment, says High Court.

DONT LOOK NOW, BUT THE SUPREME COURT and Congress have just snatched away some of the most basic political rights of Americans, including the right to freedom of speech during election campaigns. The McCain-Feingold "Bipartisan Campaign Reform Act" criminalizes political speech in connection with federal and even state elections. That law makes it a felony for a corporation, labor union, or non-profit advocacy group to criticize-or even mention-a member of Congress in broadcast ads 60 days before a federal election.

Under the guise of "campaign finance reform," BCRA also severely limits the ability of all of us-individuals, corporations, unions, non-profit groups-to make our voices heard by donating to the political parties whose positions we wish to support. Except under limited circumstances, it is now a federal crime for state and local candidates, officeholders, and political parties to engage in public speech that "attacks" or "supports" candidates for federal office.

And the Supreme Court thinks that's just swell-no constitutional free speech problem there.

On December 10, the Supreme Court held in McConnell v. FEC that almost all of the provisions of BCRA, including flat-out prohibitions of political speech, do not violate the First Amendment. Dissenting, justice Clarence Thomas slammed the court for upholding "the most significant abridgment of the freedoms of speech and association since the Civil War."

The muzzling of groups that might be critical of members of Congress is so severe that the National Rifle Association is looking at beaming its point of view into the U.S. on 50,000 watt clear channel stations from Mexico, or broadcasting from ships in international waters-any place that free speech might still survive outside the politically repressive regime that has now been imposed in the United States of America.

Impossible for this to happen here, you say? Not impossible. It's a done deal. The exercise of core portions of our political and constitutional freedoms has now been declared a felony. There are no further appeals.

This could not have happened if we had been paying attention and guarding our rights. But utterance of the words "campaign finance reform" causes eyes to glaze, snores to erupt, and TV remotes to click. That is due in part to its mind-numbing complexity. Campaign financing also has been seen as a game for Washington insiders. Congress passes incomprehensible statutes, and the courts review them under abstruse First Amendment precedents. Only the political professionals care. Life goes on and not much changes.

Now a lot has changed, and we need to understand that, and act. The provisions of BCRA are indeed complex. The principal statute that it amends, the Federal Election Campaign Act of 1971, is dense and convoluted. The opinions by the Supreme Court justices in the McConnell case run to nearly 300 pages, by some counts, the longest in the Supreme Court's history.

But buried in that tangle are, in the words of justice Thomas, "unprecedented restrictions" on First Amendment freedoms, that constitute an "assault on the free exchange of ideas" and "directly target...and constrict... core political speech...." Taken together, BCRA's restrictions will radically transform the ways in which election campaigns can be conducted in this country.

The most important proscriptions upheld by the court are of two types. The first are bans on soliciting, contributing, receiving, or spending "soft money." This is money raised by political parties-legally until now-that is not subject to the federal election regulatory apparatus.

The second are prohibitions on expenditures for issue advocacy and election speech, such as the criminally enforced blackout on advertising by independent groups that mentions a member of Congress during the 60 days before an election. This politically motivated censorship of speech is flagrantly unconstitutional, and earlier attempts by Congress to smother "independent expenditures" for political speech were struck down by the Supreme Court.

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