The media are missing a scandal because the media are the scandal. They are complicit with the portion of the political class attempting to impose on the public, in the name of campaign finance reform, speech restrictions of the sort from which the media are immune. But the rationale for this immunity, as explained by the Supreme Court in the First Amendment case most cherished by the media, refutes the argument for the campaign reforms most of the media favor.
The Senate is debating the McCain-Feingold bill to ban "soft money" contributions to political parties. Such money can be used only for certain purposes, such as issue ads, voter registration and turnout drives, and cannot be spent in support of particular candidacies for federal offices.
One possible effect of outlawing soft money might be what the reformers desire: reducing corruption or the appearance of it. One certain effect is a diminution of political communication, exhortation, argument--in a word, speech.
In the 1976 Buckley vs. Valeo ruling, the Supreme Court struck down limits on what candidates could spend, arguing on First Amendment grounds that money is indispensable to political communication, so limiting spending limits speech. That ruling was a direct descendant of a 1964 ruling, New York Times vs. Sullivan, which began when the Times published a political advertisement that supported civil rights groups in the South.
The ad communicated information, expressed opinions, cited grievances and alleged abuses. An elected city commissioner in Montgomery, Ala., filed a libel action against the Times' publisher and some clergymen whose names appeared in the ad. An Alabama court awarded the commissioner $500,000, and the case went to the U.S. Supreme Court, where Justice William Brennan, writing for a unanimous court, reversed the Alabama judgment.
He said the judgment violated the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Indeed, "neither factual error nor defamatory content" nor a combination of those "suffices to remove the constitutional shield" from political speech such as the ad.
Today many in the media, comfortable behind that shield, urge Congress to impose speech-regulating measures that must mean less "uninhibited, robust and wide-open" debate. The media's influence increases as the political speech of everyone else is brought under an increasingly complex regime of regulation. Also, the media's enthusiasm for speech-regulating reforms is applied liberalism, the impulse to have the state put a leash on everything, in the name of equality.
But defenders of unfettered speech should not support raising the $1,000 limit legislated in 1974 and allowed to stand by the court in 1976. Because the real value of $1,000 has declined as the costs of campaigning have risen, the limit forces candidates to spend disproportionate amounts of their time raising money in dribs and drabs.
But to acquiesce in raising the $1,000 limit would be to endorse the insupportable--the principle that limits on giving, unlike those on spending, are compatible with the Constitution. Here, worse is better: the more such limits on contributions make life difficult for the political class, the more likely that class is to throw up its hands and, as a last resort, do the right thing--deregulate political speech.
The time is not ripe for the audacious concept that Congress shall make no law abridging freedom of speech. Meanwhile, the prize for perverse audacity goes to Arizona's reformers, who persuaded voters to approve, by a slender majority, a campaign financing system, the awfulness of which only begins with partial public funding and a 20 percent reduction in existing state limits on private contributions. To discourage independent groups from participating in politics, extra public funds are given to candidates when independent groups campaign against them.
The pot of money for Arizona candidates is filled in part by a $100 annual fee on certain lobbyists--those who represent for-profit entities or trade associations. This is constitutionally dubious because it conditions the exercise of the First Amendment right to petition for redress of grievances.
In addition, there is a 10 percent surcharge on all civil and criminal judgments. So when on June 9 Steve May got a $27 parking ticket in Tempe, he sent the city a check for $24.30, subtracting the coerced political contribution. May thereby practiced what Jefferson preached: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical."