CHAPTER TEN
SILENCING POLITICAL DEBATE
“If men are to be precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep to the slaughter.”
George Washington1
What was once unthinkable is now law. Your right to free speech—especially political speech—is being suppressed with the active support of the courts. So absurd and dangerous has the Supreme Court’s view of free speech become that it struck down an anti–virtual child pornography statute as a violation of the First Amendment, but upheld prohibitions against running a political ad during the month before a federal general election as criminal.2 Indeed, you can burn an American flag as a form of protest,3 but you can’t distribute pro-life leaflets within one hundred feet of an abortion clinic.4 When students wear armbands to school, they are engaging in protected speech,5 but mentioning God at a commencement ceremony is unconstitutional.6 The illogic of these rulings, and the extent to which the justices are willing to split hairs and manufacture various standards when interpreting the First Amendment’s free speech clause, is mind-boggling.
Here’s what the First Amendment says about free speech: “Congress shall make no law…abridging the freedom of speech.”7 That’s it, all of it. The framers could not have been clearer about what they meant or about their intentions. Ten simple and straightforward words. Yet our most cherished form of speech, political speech, is not so free anymore.
The Supreme Court used to understand this. In 1966 it noted that “[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”8
I’d like to think that it’s beyond argument that open and free political debate is central to our freedoms, but according to the Supreme Court, I’m wrong. I’m wrong because Senators John McCain of Arizona and Russ Feingold of Wisconsin drafted a bill, passed by Congress, and signed into law by the president, which uses words like “reform,” “corruption,” and “special interests” to justify restricting and even criminalizing political speech under the guise of “campaign reform.”
But who, exactly, is being “corrupted” by our political system? Don’t ask McCain. While he’s quick to make the charge, he seems unable to back it up. During a key debate on the Senate floor with Senator Mitch McConnell of Kentucky, the Senate’s leading opponent of McCain-Feingold, McConnell challenged McCain for evidence:
McConnell: I am just interested in engaging in some discussion here about what specifically—which specific senators he believes have been engaged in corruption. I know he [McCain] said from time to time the process is corrupt. But I think it is important to note, for there to be corruption, someone must be corrupt. Someone must be corrupt for there to be corruption. So I just ask my friend from Arizona what he has in mind here, in suggesting corruption is permeating our body and listing these [spending] projects for the benefit of several states as examples.9
After McCain gave a long and unresponsive reply, McConnell persisted.
McConnell: I ask the Senator from Arizona, how can it be corruption if no one is corrupt? That is like saying the gang is corrupt but none of the gangsters are. If there is corruption, someone must be corrupt…. I repeat my question to the Senatorfrom Arizona. Who is corrupt?10
McCain: First of all, I have already responded to the senator that I will not get into people’s names.11
The McCain-Feingold Act, signed into law in 2002, ignores the clear wording of the free speech clause and imposes draconian limits on political speech. The act, among other things, bans contributions to political parties from corporations, labor unions, and other groups, and prohibits certain forms of political advertising in the crucial days leading up to elections.12
The McCain-Feingold Act is obviously unconstitutional. The First Amendment specifically protects the right of the people to influence their representatives. It states, in part, that “Congress shall make no law…abridging the right of the people…to petition the government for a redress of grievances.”13 If that isn’t clear enough, the Supreme Court ruled in 1976 in Buckley v. Valeo that giving money to support political campaigns was protected by the First Amendment.14 While limits on contributions to campaigns were permissible in order to prevent corruption or the appearance of corruption, individuals or groups were permitted to spend as much money as they desired in running advertisements that supported a particular issue rather than a specific candidate.15 The Court also ruled that individuals and groups could make unlimited financial contributions to political parties.16
There are aspects of Buckley v. Valeo that I believe violate the First Amendment, but it’s a bulwark of constitutionality compared with the Supreme Court’s 2003 opinion upholding most parts of the McCain-Feingold bill in McConnell v. Federal Election Commission.17
The Court stamped its approval on prohibiting national parties from raising or spending so-called “soft money” (money not spent in direct support of a specified candidate); regulating how state political parties can spend soft money in federal elections;18 banning federal officeholders or candidates from raising or spending soft money; prohibiting political parties from transferring or soliciting soft money for politically active tax-exempt groups; banning state candidates from spending soft money on public communications that promote or attack federal candidates; defining “electioneering communication” as a broadcast advertisement mentioning a federal candidate, targeted at their electorate, and aired within thirty days of a primary or sixty days of a general election; requiring corporations and unions to use only “hard money” (money that is spent in direct support of a specified candidate) to pay for electioneering communication; requiring that individuals disclose their spending on electioneering communications to the Federal Election Commission (FEC); requiring that “coordinated” electioneering communications be treated as contributions to candidates and parties; defining “coordination” as “Congress has always treated expenditure made after a wink or nod as coordinated”; and affirming the new FEC requirements for candidate disclosure.19
Confusing? Do the terms “soft money,” “hard money,” and “coordination” mean anything to you? Probably not. They are all inventions of the federal government. Remember, the Constitution’s free speech clause states: “Congress shall make no law…abridging the freedom of speech.” Yet McCain-Feingold creates an environment in which anyone who dares to enter the political arena, and hopes to have a real influence on the outcome of an election, will risk fines or even imprisonment if he runs afoul of this law while merely trying to exercise his free speech. He’ll need a team of election-law experts to help steer him through this legal minefield. Even then, he can’t be certain he’ll escape allegations of wrongdoing.
Now, you might think that the members of Congress who voted for this law would have read it and understood it before passing it. You might think that McCain-Feingold supporters, who insisted that this law was critical to cleaning up rampant corruption in politics, would have had some idea before supporting it as to how it would supposedly eradicate that corruption. But, for the most part, you’d be wrong.
In February 2003, the New York Times reported how McCain-Feingold was confounding even members of Congress and quoted Robert F. Bauer, a lawyer for the Democrats’ House and Senate campaign committees who gives seminars on the law, as saying: “We sometimes leave our audiences in a state of complete shock,” with the congressmen expressing a “sort of slack-jawed amazement at how far this thing reached,” followed by “a lot of very anxious questions.” The article goes on:
The new chairman of the Democratic Congressional Campaign Committee, Representative Robert T. Matsui…who voted for McCain-Feingold, says he has been surprised by its fine print.
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br /> “[I] didn’t realize what all was in it,” Matsui said. “We have cautioned members: ‘You have to really understand this law. And if you have any ambiguity, err on the side of caution.’”20
The confusion surrounding McCain-Feingold involves virtually every aspect of what used to be considered perfectly legitimate, legal, and even important politicking:
For example, members of Congress have been informed that while they can attend annual state party dinners back home, they cannot permit their names to appear on the invitation as members of the host committee, since most state parties are permitted to raise money in excess of the $2,000 hard-money limit embodied in the federal law.
And, while the lawmakers are allowed at least to show up, socialize, and speak at those state party dinners, the law may be less forgiving when it comes to their attendance at bread-and-butter fund-raisers held by candidates running for state and local office. Some party lawyers have concluded that a member of Congress can attend and even speak at a fund-raising dinner for a local politician, but others argue that the question is open to interpretation, involving everything from what the candidate says to the maximum level of contributions at the dinner.
Those are among the issues that will surely be litigated in the months to come. Given the confusion in the meantime, party officials are urging members of Congress to consult their lawyers about every political invitation.21
Of course, the courts will now decide all nuances involving myriad political issues, no matter how intricate. The slippery slope has been greased by the Supreme Court itself. Rather than striking down McCain-Feingold as blatantly unconstitutional, it has unleashed what will be never-ending litigation and court oversight of the political process, something the framers never would have sanctioned.
Nor could the framers ever have envisioned prohibiting groups from running advertisements about a candidate’s positions thirty days before a primary election and sixty days before a general election. As Justice Anthony Kennedy said in his partial dissent:
The majority permits a new and serious intrusion on speech when it…prohibits corporations and labor unions from using money from their general treasury to fund electioneering communications. [The majority] silences political speech central to the civic discourse that sustains and informs our democratic processes. Unions and corporations, including nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages that “refer to a clearly identified candidate.”22
During the debates leading to the enactment of McCain-Feingold, Congressman Steve Chabot noted how the media was exempted from anti-corruption campaign reforms: “[Campaign finance] would ban corporations, labor unions, social welfare groups and political groups from advocating issues important to them during specific times in campaigns, subjecting them to not only new speech restrictions, but also increased penalties beyond those imposed by current law. At the same time, [McCain-Feingold] exempts the media.”23
And so it does. The media is not regulated by campaign finance law—not that it should be, of course. Besides specifically protecting free speech, peaceable assembly, and petitioning the government, the First Amendment also singles out freedom of the press for protection. But interestingly, this is the only First Amendment right entirely exempt from McCain-Feingold’s reach. It’s troubling to note that, with its own freedom preserved, much of the press rushed to embrace McCain-Feingold.
The reaction of the New York Times editorial page was typical of the mainstream media:
The Supreme Court delivered a stunning victory for political reform yesterday, upholding the McCain-Feingold campaign finance law virtually in its entirety. The court rejected claims that the law violates the First Amendment, making it clear that Congress has broad authority in acting against the corrupting power of money in politics. The ruling is cause for celebration, but it should also spur Congress to do more to clean up our political system.24
On Sunday, October 17, 2004, a mere sixteen days before the 2004 presidential election, the New York Times—well within the sixty-day prohibition against the broadcasting of political advocacy advertisements—continued its long practice of endorsing Democrat nominees for president with an editorial titled “John Kerry for President.”25
The Washington Post called the Court’s McCain-Feingold decision “one of its most important decisions in a generation.”26 It would be more accurate to call it one of its worst.
But more is on the way. The Court acknowledged as much in its McCain-Feingold decision when it said, “We are under no illusion that [the law] will be the last congressional statement on the matter. Money, like water, will always find an outlet.”27
Indeed, one of the unintended but entirely predictable consequences of McCain-Feingold’s maze of regulations has been the growth of groups known as 527s (after the section in the Internal Revenue Code under which they are organized). They can raise as much unregulated soft money contributions as they want. These organizations, run by a handful of individuals unaccountable to any political institutions, have become extremely influential.
Since the Democrat Party is and has always been less successful at raising funds from small contributors, some of its wealthy donors have discovered they can simply divert their contributions to these 527 groups, which can in turn use the money to help Democrat candidates. And that’s exactly what has happened. For example, billionaire financier George Soros has committed tens of millions of dollars to Democrat-related groups. The Washington Post reported, “Soros’s contributions are filling a gap in Democratic Party finances that opened after the restrictions in the 2002 McCain-Feingold law took effect. In the past, political parties paid a large share of television and get-out-the-vote costs with unregulated ‘soft money’ contributions from corporations, unions and rich individuals. The parties are now barred from accepting such money. But non-party groups in both camps are stepping in, accepting soft money and taking over voter mobilization.”28
According to the Center for Public Integrity, between August 2000 and November 2004, Soros’s contributions to 527 groups included:
America Coming Together—Nonfederal Account
$7,500,000
Joint Victory Campaign
2004 $12,050,000
MoveOn.org Voter Fund
$2,500,000
Campaign for a Progressive Future
$500,000
Campaign for America’s Future (Labor)
$300,000
Democracy for America—Nonfederal
$250,000
DASHPAC—Nonfederal Account
$20,00029
Soros isn’t alone. Among the biggest of the Democrat 527 groups’ financial backers is Peter Lewis, who has also poured tens of millions of dollars into several of these organizations. The Center for Public Integrity reported that, as of November 1, 2004, Lewis had contributed the following amounts to Democrat-related organizations:
Joint Victory Campaign 2004
$16,000,000
America Coming Together—Nonfederal Account
$2,995,000
MoveOn.org Voter Fund
$2,500,000
Marijuana Policy Project Political Fund
$485,000
Young Democrats of America
$650,000
Punk Voter Inc.
$50,00030
The Democrats have been far more successful in funding these organizations than the Republicans. The vast majority of the top fifty 527 groups support Democrat causes. As of December 2, 2004, here are the top fifty 527 groups in receipts and expenditures:
Committee Name
Receipts
Expenditures
Joint Victory Campaign 2004
$65,553,751
$59,222,983
America Coming Together
$61,832,339
$55,135,924
Media Fund
$51,655,183
$46,653,162
Progress for America
$37,897,201<
br />
$28,808,577
Service Employees International Union
$28,762,575
$30,850,034
American Federation of State/County/Municipal Employees
$20,493,101
$19,965,342
MoveOn.org
$12,075,952
$20,383,124
Swift Vets and POWs for Truth
$11,836,949
$13,766,664
New Democrat Network
$10,848,380
$10,691,349
Club for Growth
$10,116,855
$12,275,112
Sierra Club
$6,811,875
$5,405,139
College Republican National Committee
$6,372,843
$8,207,393
Men in Black Page 16