Should Tom Paine Have Filed with the FEC?

Article excerpt

Thomas Paine, the author of Common Sense, was lucky that King George wasn't running for reelection in 1776. Common Sense was more than a rallying cry for independence for the American colonies; it attacked the ruling monarch in the most personal terms.

The king, Paine wrote, "hath wickedly broken through every moral and human obligation, trampled nature and conscience beneath his feet; and by steady and constitutional spirit of insolence and cruelty, procured for himself universal hatred."

If today's campaign-finance "reformers" had been around in 1776, they would have declared Common Sense "express advocacy"--a form of political speech that can be subject to government control. To print his pamphlet, Paine and his fellow supporters of independence would have had to form a political action committee--called, let us say, People for the Overthrow of the Mad King. They would have been required to file the requisite forms, restrict their contributions, and even add a disclaimer. Under some versions of reforms being proposed now, they would have been required to give King George equal time.

The rage to "reform" political campaigns comes and goes with the frequency and ferocity of E1 Nino. Every couple decades or so, it seems, a hot-air front of self-designated "reformers," editorial page editors, and Sunday morning talk show pundits gather force to complain about the corrupting influence of money in campaigns and the nefarious effects of what they like to call "special interests."

Such a front is storming through our public debate today. Yet what is at issue is much bigger than campaign-finance reform. At stake are common sense and free speech. That is, the preservation of the right of Americans like Paine to petition their government and rally their fellow citizens for political change. Today that fight is being threatened by politicians who call themselves reformers. In effect, it is the "big guys" who find themselves threatened by the speech of "little guys."

For a generation now, challengers to the Washington Establishment have had their political speech hemmed in by limits on contributions and spending that were imposed by an earlier generation of "reformers." In 1974, in a burst of indignation following Watergate, reformers limited the amount of money that could be contributed to federal candidates.

In the case of presidential candidates, a "voluntary" ceiling was placed on the amount candidates could spend. If the goal of these regulations was to attract the largest number of qualified candidates and give them an opportunity to project their message--while giving us an opportunity to hear it--the Watergate reforms have proven to be a disaster.

Despite this failure, reformers still see "too much" money in politics. Now, however, instead of money going just to candidates, it's going to political parties and independent groups. So the self-styled reformers have directed their efforts against these groups--the modern-day Tom Paines--whose spending, until now, has been relatively unfettered by government regulation.

The most prominent "reform," one endorsed by President Clinton and 48 U.S. senators, threatens the free speech of independent groups by expanding the definition of political speech that is subject to regulation by the federal government.

As the rules stand today, ads that use express terms--phrases such as "vote for" or "vote against"--are known as "express advocacy" and are subject to regulation by the Federal Election Commission (FEC). Ads that don't use express terms--even if they run during a campaign and refer to a candidate--are called "issue advocacy." These are outside the realm of government regulation.

The new reforms would make it so groups might cross the line between "express advocacy" and "issue advocacy"--and find themselves in trouble--by airing ads that referred to "one or more clearly identified candidates" within 60 days of an election. …