Political speech difficult to regulate

? In theory, at least, the three federal judges who heard oral arguments last week on the latest piece of campaign finance legislation are supposed to be weighing the constitutionality of its provisions, not its practical or partisan effects. But as this case moves through the courts – an accelerated appeal to the Supreme Court is certain, no matter what the outcome – the real-world consequences of the legislation are already being felt.

The bill sponsored by Sens. John McCain and Russ Feingold and by Reps. Chris Shays and Marty Meehan is complex in its provisions, but it has two main parts. One cuts off unlimited “soft money” donations from corporations, unions and wealthy individuals to the political parties. The second part limits the ability of nonparty organizations to use their regular dues or treasuries to pay for “issue ads” that in effect endorse or oppose federal candidates. Instead, it requires those ads to be financed under the same limitations that candidates and parties face.

In the eyes of proponents, both parts are necessary to protect the political system from the corruption of unlimited or undisclosed sources of money. But critics say both sections infringe seriously on First Amendment rights of free speech and free association. In previous cases, the Supreme Court has held that the government has a legitimate interest in preventing corruption or the appearance of corruption in the election process, but has said it must exercise that authority within limits that respect the constitutional guarantees.

This case promises to provide the definition – for the current political system – of how far the government may go before trampling on the First Amendment.

In depositions filed with the many amicus briefs submitted on the case, current and former members of Congress, lobbyists and private citizens detailed with considerable frankness the corruption they say is at least implicit when public officials solicit six-figure contributions for their parties. And candidates described how outside groups almost hijacked their campaigns, with large-scale and often negative ads, sometimes without clearly identifying themselves or their financial sources.

The written testimony of these participants is compelling and probably would carry the day in the court of public opinion, where the notion that politicians are for sale is already more pervasive than the evidence justifies.

But courts – and particularly the current Supreme Court – have other standards, and this Supreme Court has taken an expansive view of First Amendment rights. As a journalist, I am of course grateful for that. But I would think that many others, mindful of the danger to individual freedoms when the country feels itself under threat, would also hope that the court uses this case to reassert its strong belief in freedom of political speech.

Contribution limits – or bans, in the case of corporations and unions – have been upheld for decades, and that part of this legislation may well survive. But direct limits on political advocacy are harder to square with the First Amendment, even if the restrictions, as in this case, go to the way in which the ads are financed, rather than the ads themselves.

There are also inescapable practicalities of which the judges and justices might well take notice. In the few weeks since the new legislation went into effect, inventive lawyers and politicians have devised new organizations, legally separate but still linked to the political parties, that they believe can continue to funnel large sums of money into campaigns, with or without disclosing their sources. The reality is that it is difficult, indeed, nigh impossible, to erect effective barriers to the flow of funds from the private sector into the political world.

What is true of money is even more true of ideas and arguments. Whatever the court may ultimately decide, it is unlikely that the candidates and their parties can monopolize the airwaves in any future campaign, to the exclusion of other interested organizations or individuals.

In some ways, this whole dispute is about a system of campaigns that may be passe. Instead of relying solely on television ads, the Democrats (prodded by the examples of labor and environmental groups) and the Republicans (similarly stimulated by the examples of the National Rifle Assn. and the Christian Coalition) are turning increasingly to personal communication – people talking politics with friends, neighbors and associates.

The new legislation affects only TV ads, not the new political medium of the Internet and not the old but revived political communication between individuals. And that may be the best thing about it.


– David Broder is a columnist for Washington Post Writers Group.