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A Reform That Endangers Free Speech

By Nadine Strossen, Ira Glasser and Laura W. Murphy
Monday, July 6, 1998; Page A19

Nine former leaders of the American Civil Liberties Union have released a statement saying that they have changed their positions on campaign finance and now disagree with legal scholars, Supreme Court justices and the ACLU's long-standing policy to seek the highest constitutional protection for political speech [E. J. Dionne Jr., "Politics as Public Auction," op-ed, June 19].

In their statement, these leaders argue that the Supreme Court misread the First Amendment in 1976 when it issued its ruling in Buckley v. Valeo, which struck down legislative limits on campaign expenditures in a holding that reflected many legal precedents and has been repeatedly reaffirmed. Our former ACLU colleagues say that our opposition to current legislation allows members of Congress to hide behind an unjustified constitutional smoke screen.

We are untroubled by the questions they raise and believe that it is they who allow members of Congress and the president to hide behind so-called reforms that are unconstitutional and ineffective. As long as measures such as McCain-Feingold or Shays-Meehan are allowed to masquerade as reform, neither Congress nor President Clinton will get serious about true reform, which we believe lies in the direction of fair and adequate public financing.

Just last year, we offered Burt Neuborne, a former ACLU legal director and one of the principal opponents of our campaign-finance policies, the opportunity to argue his position before the ACLU's 83-member national board. After hours of debate and discussion, Neuborne failed to shift the board to his view. Many board members argued that Neuborne's position was in direct conflict with the First Amendment rights that form the foundation of our democracy. Ultimately, the one board member who had offered a motion to radically alter our long-standing policy withdrew it rather than allowing it to come to a vote.

Yet our former ACLU colleagues offer sweeping proposals that would constitute a wholesale breach of First Amendment rights and that ignore the real-world impact of limits on speech. They speak approvingly of efforts to impose "reasonable limits on campaign spending" without saying specifically what such regulations would do. But when we look at those consequences it is clear that current campaign-finance measures would do immeasurable damage to political speech.

A key provision of both McCain-Feingold and Shays-Meehan would, for example, establish limits that effectively bar any individual or organization from explicitly criticizing a public official -- perhaps the single most important type of free speech in our democracy -- when the official is up for reelection within 60 days. If that kind of law had governed the recent New York City mayoral election, it effectively would have barred the ACLU (and other nonpartisan groups) from criticizing incumbent Mayor Giuliani by name on the subject of police brutality in the wake of the horrific Abner Louima incident precisely during the preelection period when such criticism is most audible. That prohibition would have gagged us even though the ACLU never has endorsed or opposed any candidate for elective office and is barred by our nonpartisan structure from doing so. Similarly, anti-choice groups such as the National Right to Life Committee effectively would be barred from criticizing candidates who support reproductive freedom. Yet such criticism of public officials is exactly what the First Amendment was intended to protect.

In contrast, the ACLU supports many reforms that would protect and increase political speech, including instituting public financing, improving certain disclosure requirements, establishing vouchers for discount broadcast and print electoral ads, reinstating a tax credit for political contributions, extending the franking privilege to qualified candidates and requiring accountability of and providing resources to the Federal Elections Commission.

Still, our former ACLU colleagues press proposals that inevitably would limit political speech. We continue to shake our heads, wondering how such measures can be regarded as "reforms" by anyone who is committed to the First Amendment.

The writers are, respectively, president, executive director and legislative director of the American Civil Liberties Union.

© Copyright 1998 The Washington Post Company

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