Free speech is not selective speech, respectable speech or popular speech. Free speech does not exist unless it can include speech that you–and perhaps most people–despise. People must have, as individuals and as groups, the routine right to express themselves, even if their expressions offend. Somehow these truths escape the supporters of “campaign-finance reform,” whose crusade threatens free speech.
In the final 60 days before the 2000 election, there were more than 135,000 political advertisements run by sponsors who weren’t candidates or the political committees of candidates, reports the Brennan Center for Justice at New York University. The new campaign-finance law–known variously as McCain-Feingold and Shays-Meehan after its main Senate and House sponsors–aims to remove many (if not most) of these ads by non-candidates from the air. Unless political advertisements aren’t “speech,” this represents a massive suppression of free speech. If you doubt that’s the intent, listen to Senate supporters in recent debate.
“This bill . . . is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves,” said Sen. Maria Cantwell (D-Wash.). “We must also close off the use of corporate and union treasury money used to fund ads influencing federal elections,” said Sen. Olympia Snowe (R-Maine).
You might ask: What’s wrong with groups–the National Rifle Association, the Sierra Club–running ads to praise friends or pillory foes? That’s democracy. You might wonder whether the 1st Amendment makes exceptions for “negative” speech, speech intended to influence elections or repetitive speech. It doesn’t. Finally, you might rightly suspect a role for incumbent self-protection. Sen. Barbara Boxer (D-Calif.) confessed that she would be well rid of “those vicious attacks” (advertisements) in the final 60 days before an election.
Let’s list just a few of McCain-Feingold’s speech restrictions:
– Title I, Section 323(f) limits the right of state officeholders and candidates to run ads that “promote or attack a clearly identified candidate for federal office”;
– Title II, Section 203 prohibits unions and companies from spending their money on “electioneering communications”–defined as TV, cable and satellite ads that mention federal candidates–within 60 days of a general election or 30 days of a primary;
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– Title II, Section 204 applies the same prohibition to non-profit groups, such as the NAACP and the National Right to Life Committee.
The last two sections could eliminate many outside TV ads. These span the political spectrum. In 2000, estimated the Brennan Center, about 44 percent were from business groups, 27 percent from groups favoring women’s right to abortion and 14 percent from the AFL-CIO. Contrast the complex rules with the 1st Amendment’s clarity: “Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, or to petition the government for a redress of grievances.”
In truth, “campaign-finance reform” violates this constitutional guarantee in ways that transcend McCain-Feingold. Reformers want to limit political contributions and campaign spending, which purportedly “corrupt” government. In Buckley vs. Valeo, the U.S. Supreme Court approved limits on campaign contributions but not spending. Large contributions might unduly influence politicians, the court said. But limiting campaign spending–by candidates or outsiders–would restrict their free speech. In practice, the court’s distinction hasn’t worked.
Politics is about interest groups–of both left and right–cooperating with sympathetic candidates and officeholders. But close cooperation erases the distinction between a contribution and campaign spending. If an interest group runs a political ad at a candidate’s request, then the money for the ad amounts to a donation to the candidate. Contribution limits become meaningless. The cure is to outlaw cooperation. But that destroys free speech. People can’t talk to senators, representatives, candidates or their staffs without flirting with illegal cooperation. Groups can’t lobby without running the same risk.
Only the U.S. Supreme Court can end the charade. When it considers McCain-Feingold, it should declare most campaign-finance regulation unconstitutional. The alleged evils of money in politics are now overshadowed by the evils of strangling free speech.