Archive for Friday, February 22, 2002

Campaign reform attacks free speech

February 22, 2002


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That's the First Amendment to the U.S. Constitution. Once, it was well understood and fiercely defended. Today, many Americans seem to be willing to trade it away on politicians' promises.

The U.S. House last week passed a popular campaign reform measure, part of which brazenly violates the above. It bars citizens from freely pooling their money to criticize politicians near an election.

Among its reforms, the House's Shays-Meehan bill prohibits unions, corporations and nonprofit groups from freely running ads that refer to a candidate by name within 30 days of a primary or 60 days of a general election. Those ads can be nasty and unfair, and they can be effective. Still, if this ban is not abridging freedom of speech, the concept has no meaning.

The white knights of reform simply trampled over that restraint. The House, in fact, voted 237 to 188 to kill an amendment stipulating that nothing in Shays-Meehan could violate the First Amendment. In the post-Enron world, politicians have gleaned from their polls that the label of reform packs greater voter appeal than a rear-guard defense of the Constitution.

Many backers of Shays-Meehan have lamented this extra-legal aspect of the bill. They are trusting the Supreme Court to "clean up" an otherwise helpful reform by tossing out the advertising ban. But as H.L. Mencken wrote half a century ago, not entirely facetiously: "No one can be sure anymore that in a given case they will uphold even the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won't. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it."

I don't mean to question the need for reform. There is no doubt that the well-heeled have inordinate power in Washington. Through their campaign contributions, they buy access. Their phone calls get answered. This means that special interests often take precedence over the public interest. It's getting worse every year.

One prays a ban on soft money  the unrestricted money that pours to parties  would have some effect in checking this. No reform is perfect, of course. Under the House measure, money would continue to flow from fat cats to politicians (and this reform doubles the amount that can be given, from $1,000 to $2,000 per contributor per politician). If special interests could not give so much in one fell swoop, they could easily encourage individuals to contribute to politicians; 25 executives from a corporation might give a total of $50,000 to a politician, rather than a corporation chief giving $50,000 to a party. And the more savvy supporters of Shays-Meehan note that this reform will be temporary  as were the post-Watergate reforms that led to the soft-money cascade of today. Dam up the flow of political cash in one direction, and it usually finds new channels. So the reformers will have to keep returning to the task.

I just hope that the ban on advertising will not stand.

Politicians, after all, have a clear motive for curtailing political speech. Incumbents have a direct interest in silencing criticism of their records, especially around election time. The First Amendment was put in place, in part, to foil such an attempt.

I can see the argument for such a restriction: Choke off soft money to parties, and special interests might simply dump dollars into ads defending their favorite politicians or attacking their foes. And how would that scrub government clean of influence? House Minority Leader Richard Gephardt once put it this way, with refreshing candor: "What we have here is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can't have both."

He's got a point. But if you can't have both, then I'd take freedom of speech.

I have precious little faith in politicians' definitions of "healthy campaigns," which invariably boil down to incumbent protection. Thomas Jefferson displayed a shrewd understanding of human nature  and the dangers of unchecked political power  when he wrote: "The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate for a moment to prefer the latter."

Are 30-second issue ads by citizens groups and special interests the same? In the sense of preserving the essential right to criticize politicians, they are.

Start chipping away at this basic freedom, and all others come tumbling down.

 Edward Achorn is the Providence Journal's deputy editorial pages editor. His e-mail address is

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