FREE SPEECH has its raucous and turbulent aspects, offensive to a certain kind of tidy mind. There appears to be a growing inclination among some of the government's lawyers -- those whose mission is to make the world a neater and more manageable place -- to impose a few small limits on the exercise of the First Amendment. Your rights under the amendment are broad and, if they are slightly narrowed, you will hardly notice it -- will you?
The Federal Election Commission has now begun to get itself entangled in this interesting subject, a reader recently pointed out to us. A couple of months ago it issued an advisory opinion telling a trade organization, the Associated Builders and Contractors, that it can tell some people, but not others, whom it supports in the presidential election. The FEC says that the association can publish an endorsement in its biweekly newsletter, but not in its monthly magazine. The distinction is that the newsletter goes almost entirely to the association's members, but the magazine goes to several thousand people who are not members. Does that logic not strike you as certifiably cuckoo?
In the FEC's defense, you have to acknowledge that it is required to try to enforce a statute that quite probably is, in large and important ways, unconstitutional. The FEC concedes that an organization has a right to convey its endorsement to its members because -- in cases involving labor unions -- the courts have said so. But the FEC does not allow the same organization to use similar resources to carry the same endorsement to the general public.
In writing the campaign funding laws, Congress was trying to keep corporate money out of federal election campaigns. The prohibition on corporate contributions to campaigns is a useful one. But the FEC goes much farther in its attempt to prevent any kind of organization from spending its own money to publish its own opinions. The Associated Builders could issue a discreet press release on its endorsement, the FEC suggests, since a press release costs an insignificant amount of money. But, in the FEC's view, a monthly magazine is another matter altogether.
If the First Amendment doesn't protect an organization's right to express an opinion on a presidential election as loudly and widely as it pleases, it's hard to think what might be protected. We will probably get a letter tomorrow from the FEC telling us that there's no need for newspapers to take any interest in this question, since the statute explicitly exempts newspapers from the FEC's rules. But that's precisely the point. Neither Congress nor the FEC can properly make that distinction. Freedom of the press is not a franchise issued exclusively to newspapers. It is a civil right. It belongs to everybody -- including the Associated Builders and Contractors.