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Reforming Free Speech Away

By George F. Will
Sunday, March 2 1997; Page C07

It was a New York dinner where more than 100 well-heeled citizens shelled out large sums of "soft money," money not for particular campaigns but for the Democratic Senatorial Campaign Committee. President Clinton, feeling the potential pain of his party's benefactors, and smarting from the injustice of it all, said: "I appreciate the fact that you came here, knowing you might be targets [of criticism] for the exercise of your constitutional right to stand up and support the people you believe in."

So Clinton does after all believe (or did that moment; stay tuned) that, as the Supreme Court says, First Amendment protections are strongest for political speech, and the acts of giving and spending money are inseparable from the act of political communication. However, Clinton, never one to miss a chance to work both sides of a political street, promptly turned to praising the McCain-Feingold bill, which would erect a regime of speech rationing – new restraints on political giving and spending.

A few days later Colorado's Gov. Roy Romer, chairman of the Democratic Party, was on Sunday television taking the party line, which is that the First Amendment must suffer for the president's sins. To be precise, the line is that Clinton's interesting fund-raising practices – Chinese arms merchants, Indonesian businessmen, sleepyheads in Lincoln's bed, etc. – prove only that "there's too much money in politics."

(In 1996 millions of Americans contributed $2.6 billion to the campaigns concerned with filling 476 federal offices. Americans had enough change left over to spend $4.5 billion on potato chips.)

Romer, asked about Clinton's statement that it is a constitutional right to give "soft money" to advance political convictions, replied: "It is a constitutional right, but we've got to find a way to limit it."

Questioner: "If it's a constitutional right, it's a constitutional right of free speech. Now, you're talking about figuring out how to make a law abridging the right of free speech?"

Romer: "I think we need to make distinctions between free speech and how much money can influence campaigns through television. . . . I think the president was right to be in New York. . . . he wants to get rid of soft money. . . ."

Questioner: "He says it's a constitutional right. He wants to get rid of a constitutional right?"

As Romer was struggling to square that circle, Sen. John McCain (R-Ariz.) was on another network but in a similar intellectual cul-de-sac. He was defending his bill's provision that would blur the distinction the Supreme Court has drawn between issue advocacy and advocacy of a specific electoral outcome.

The Supreme Court unfortunately says government can regulate "express advocacy," meaning communication that uses explicit words to advocate the election or defeat of a particular candidate. The court's examples of words that can trigger regulation include "elect," "support," "vote for," "defeat," "reject." Proof of "express advocacy" must be in the communication's text – words actually used.

However, McCain-Feingold would empower the speech-regulating bureaucracy to decide that "express advocacy" has occurred, and the regulating can proceed, if that bureaucracy decides that the communication's effect or motivation is to have electoral consequences. McCain-Feingold would expand the definition of "express advocacy," and hence the powers of the speech-rationers, to cover:

Communication "that refers to a clearly identifiable candidate" (evidently it need not identify the candidate) and "that a reasonable person would understand as advocating the election or defeat of the candidate" or "made for the purpose" of advocating a candidate's election or defeat. Such purpose would be shown by any statements or actions, at any time or place, by the person or group making the communication, which the bureaucracy says indicate that person's purpose.

Under McCain-Feingold, speech regulation could be triggered not only, as now, by explicit words in a communication, which is bad enough, but by the bureaucracy's surmise, even in the absence of such explicit words, that the communicator wanted to influence voters. For example, an abortion rights group could come under the regulators' thumbs by advocating its policies in the context of an electoral contest between a supporter of abortion rights and a right-to-life candidate. All that would be required is for the speech-regulating agency of the government to divine that the abortion rights group hopes that its communication might influence some voters' choices.

Beijing explains that when Hong Kong comes under Communist control this summer, "Hong Kong people will have full freedom of expression, but all freedoms must be within limits allowed by law." Full but limited, as Romer and McCain-Feingold promise.

© Copyright 1997 The Washington Post Company

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