Freedom from Critical Speech
One can barely pick up a newspaper lately without learning that the failure of Congress to pass campaign-finance "reform" legislation has once again produced a political season replete with "attack ads" either paid for by "special interest groups" or financed in part with odious "soft money." "POLITICAL PARTIES CHANNEL MILLIONS TO `ISSUE' ATTACKS," screamed a Page One, Column One New York Times headline on Monday. On Friday, the Times offered, "From Sea to Shining Sea, the TV Campaign Is All Attack Ads, All the Time." The previous week, The Washington Post weighed in with a Page One, Column One story titled, "Attack Ads Carpet TV; High Road Swept Away; Distortion Rules the Airwaves."
Editorial pages are apoplectic. Both the New York Times' and The Washington Post's editorial pages remain outraged at the success the Republican Party achieved in squelching "reform" this year. "The instrument for undoing many decades of reform is the use of unregulated `soft money' from corporations, unions and rich donors for so-called `issue ads' on television and radio," the Times whined Wednesday. "The national parties are used as straws, to raise and spend on behalf of their candidates money that the candidates are forbidden to raise and spend themselves," The Post intoned the next day. "The Republicans spent the last Congress," The Post incorrectly argued, "denouncing the practice on the part of the president in the last election."
In fact, 1996 was quite different from 1998. In return for federal (i.e., taxpayer) matching funds, which are not available for congressional elections, President Clinton agreed to limit what his campaign would spend. The Republicans denounced the White House for circumventing these limits by directly involving the president himself in the writing and editing of soft-money financed commercials, a clear violation of both the spirit and the letter of the law. For congressional elections, of course, it is explicitly legal for political parties to transfer funds to assist their candidates, and these so-called "coordinated expenditures" are determined by specific formula.
Unlike the New York Times (whose businesses include newspapers, television, radio and magazines) or The Washington Post (whose businesses include newspapers, television, magazines and cable-TV services), not every corporation is so widely diversified among such a multitude of media outlets. Nor, self-evidently, are unions - even Big Labor unions. Nor, obviously, is the overwhelming majority of "rich" people, many of whom prefer to participate politically by becoming "donors." In an era when political parties and interest groups -and yes, even "the rich" - seek to influence popular opinion by buying television and radio commercials to inform the public about the voting behavior of its representatives, it would be a gross violation of the First Amendment to drastically limit their opportunity to do so. …