Magazine article Free Inquiry

The First Amendment and Campaign Finance 'Reform'

Magazine article Free Inquiry

The First Amendment and Campaign Finance 'Reform'

Article excerpt

When the Supreme Court, 5 to 4, declared the McCain-Feingold campaign finance reform legislation constitutional on December 10, there were hosannas from Common Cause, New York University's Brennan Center for Justice, and other good-government enclaves.

The Washington Post called it "one of [the Supreme Court's] most important decisions in a generation." The New York Times' editorial page also joined the celebratory chorus with the headline: "A Campaign Finance Triumph." E. J. Dionne of the Brookings Institution, also a liberal columnist for the Washington Post, crowed: "The Supreme Court has declared that we are entitled to something more than the best democracy money con buy. In so doing, it has struck a blow for freedom."

And former Solicitor General Seth Waxman, a leading lawyer at the Supreme Court for the "reformers" in this case, McConnell v. The Federal Election Commission, told National Public Radio: "What the Supreme Court said today resoundingly is Congress is not handcuffed by the First Amendment from doing what it takes to restore the confidence of the citizens in the operation of our republic."

In cold, constitutional impact, what the Supreme Court actually did was to, by itself, tightly handcuff the First Amendment. Dissenting Justice Anthony Kennedy got to the chilling core of McCain-Feingold, calling it by its formal name: "The Bipartisan Campaign Reform Act makes it a felony for an environmental group to broadcast an ad, within sixty days of all election, exhorting the public to protest a Congressman's impending vote to permit logging in the national forests."

Justice Clarence Thomas, one of the Court's foremost, but largely uncredited, paladins of the First Amendment, was also properly indignant: "[The law] cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

Along with the National Rifle Association and the National Right to Life Committee, the American Civil Liberties Union tried mightily to defeat McCain-Feingold. Mourning its failure, the ACLU's executive director, Anthony Romero, said: "The decision will do far more to restrict political speech than to curtail the influence of money on poltics."

In this threnody for FREE INQUIRY on the unintended consequences of victories by the righteous campaign finance reformers, I will concentrate on the most flagrant abuse of the First Amendment in the new law, although there are other sections that also limit the First Amendment.

The law targets "issue ads" by such organizations as the ACLU, the Sierra Club, and the National Rifle Association. These public-interest groups are barred from broadcasting on radio or television any ads that refer to specific candidates for federal office, very much including presidential candidates, within thirty days before a primary or sixty days before a general election.

Last spring, at a conference of journalists in Boston, Congressman Martin Meehan (D-Massachusetts), one of the most vigorous promoters of McCain-Feingold, was asked how these specific time frames were selected. "Because," Meehan said logically, "that's when people are most interested in elections!"

This gag rule is so broad and vague that--as the majority Supreme Court opinion opaquely notes--the law will be violated even if "the advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election." Is everyone clear?

However, very rich individuals can spend any amount from their own funds to pay directly for any amount of broadcast ads for or against a candidate at any time--if they don't contribute funds for ads to a candidate, a political party, or any of the independent advocacy organizations covered by this law. A Bill Gates or a George Sores, therefore, has much more expansive First Amendment rights than those of us who need organizations to amplify our views. …

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