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Robert Samuelson

So Much for Free Speech

By Robert J. Samuelson
Wednesday, August 25, 2004; Page A17

The presidential campaign has confirmed that, under the guise of "campaign finance reform," Congress and the Supreme Court have repealed large parts of the First Amendment. They have simply discarded what were once considered constitutional rights of free speech and political association. It is not that these rights have vanished. But they are no longer constitutional guarantees. They're governed by limits and qualifications imposed by Congress, the courts, state legislatures, regulatory agencies -- and lawyers' interpretations of all of the above.

We have entered an era of constitutional censorship. Hardly anyone wants to admit this -- the legalized demolition of the First Amendment would seem shocking -- and so hardly anyone does. The evidence, though, abounds. The latest is the controversy over the anti-Kerry ads by Swift Boat Veterans for Truth and parallel anti-Bush ads by Democratic "527" groups such as MoveOn.org. Let's assume (for argument's sake) that everything in these ads is untrue. Still, the United States' political tradition is that voters judge the truthfulness and relevance of campaign arguments. We haven't wanted our political speech filtered.

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Now there's another possibility. The government may screen what voters see and hear. The Kerry campaign has asked the Federal Election Commission (FEC) to ban the Swift Boat ads; the Bush campaign similarly wants the FEC to suppress the pro-Democrat 527 groups. We've arrived at this juncture because it's logically impossible both to honor the First Amendment and to regulate campaign finance effectively. We can do one or the other -- but not both. Unfortunately, Congress and the Supreme Court won't admit the choice. The result is the worst of both worlds. We gut the First Amendment and don't effectively regulate campaign finance.

The First Amendment says that Congress "shall make no law . . . abridging the freedom of speech, or . . . the right of the people peaceably to assemble, and to petition the Government" (that's "political association''). The campaign finance laws, the latest being McCain-Feingold, blatantly violate these prohibitions. The Supreme Court has tried to evade the contradiction. It has allowed limits on federal campaign contributions. It justifies the limits as preventing "corruption" or "the appearance of corruption." But the court has rejected limits on overall campaign spending by candidates, parties or groups. Limiting spending, the court says, would violate free speech. Spending enables candidates to reach voters through TV and other media.

Unfortunately, this artful distinction doesn't work. If groups can spend any amount on campaigns, their spending can easily become unlimited contributions. All they need to do is ask the campaign how their money ought to be spent -- on what TV ads, for example. To prevent this, the FEC imposes restrictions on "coordination" between candidates, parties and groups making "independent expenditures." John Kerry alleges that the Swift Boat Veterans and the Bush campaign "coordinated" illegally. Republicans see similar ties between Kerry and Democratic 527s.

But "coordination" is really "speech" and "political association." It's talking and planning among people who want to elect or defeat the same candidates. There's an indestructible inconsistency between the language of the First Amendment and campaign finance laws. Why shouldn't veterans coordinate with Bush? Why shouldn't Democratic 527s coordinate with Kerry? The Supreme Court upholds the campaign finance laws simply by ignoring the First Amendment's language.

All the legal twisting has (so far) produced mostly self-censorship. Politicians try to comply with the law's letter and evade its spirit. To maximize its support for Kerry, the Democratic National Committee has set up a separate "independent expenditures" unit. The unit's top officials aren't supposed to talk politics with the Kerry campaign or other DNC officials. In a recent Newsweek interview, DNC Chairman Terry McAuliffe was asked about the unit's ads. Here's his abbreviated (for space) response:

McAuliffe: Legally, I cannot have that conversation. . . . I cannot signal to the Kerry campaign what type of ads we're doing, how much money we're spending, because that would be deemed coordination. . . .

Q: You can't tell him anything about what the themes of your advertising will be?

A: No sir, absolutely not . . .

Q: Do these rules strike you as absurd?

A: Yes.

Of course they're absurd. A party and its candidates should talk about whatever they want. If the First Amendment doesn't cover that, what would it cover? It's also unrealistic to think -- regardless of legal precautions -- that "signaling" won't occur between support groups and candidates.

The media poorly describe what's happening. Campaign finance reform is a respectable cause. It's inconvenient to say that the First Amendment is being scalped. Few do. The New York Times recently ran a story on two campaign lawyers -- one Democratic, one Republican -- who bring cases before the FEC to bend "the complex rules to their clients' maximum benefit." The story barely hinted that, once candidates need lawyers and rulings to say what they can do, their constitutional protections have disappeared.

But the truth cannot remain forever obscured. Campaign finance laws must fail at their larger aim of improving public confidence in politics and government. They breed disrespect for law, the Constitution or both. If the laws are aggressively expanded and enforced -- with more limits on contributions, spending and "coordination" -- people will realize they're losing their rights of free speech and political association. But if the laws are laxly enforced, as they have been, they will inspire continuing evasions and harsh condemnations by "reformers." Public confidence suffers either way. Americans will ultimately have to choose between the Constitution and a mere law -- or watch both be damaged.


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