Archive for Sunday, August 22, 2004

Can campaign laws ban business ads?

August 22, 2004

Advertisement

— Russ Darrow -- "The Right Russ," his bumper stickers say -- is running in the Sept. 14 primary for the Republican nomination for the U.S. Senate seat held by Russ Feingold. Feingold is a saint in the church of campaign finance reform because of the McCain-Feingold legislation. It was enacted in 2002 to solve the supposed problem of "too much money in politics."

In 1965, Darrow founded the business -- Russ Darrow Group Inc. -- that now includes 22 new and used vehicle dealerships. It is operated today by Russ Darrow III. It runs broadcast, print and electronic (e-mail and other) advertising using the now valuable brand name "Russ Darrow."

McCain-Feingold's blackout provision says that 30 days prior to a primary, it is illegal for corporations -- a category that includes thousands of advocacy groups from Planned Parenthood to the National Rifle Assn. -- to finance any "electioneering communication" via radio or television that "refers to" a congressional candidate and is "targeted to the relevant electorate."

Because of that law, the company felt compelled to ask the Federal Election Commission whether it can continue to advertise when its founder is running for federal office. Common sense says the law was not intended to pertain to, and its language cannot be tortured to extend to, commercial advertising. But Common Cause thinks otherwise.

Clearly, car ads are not "electioneering communications." Hence mentioning Darrow's name as a brand name in a communication with no relevance to any election cannot constitute making a reference to a political candidate.

Nevertheless, Jay Heck, director of the Wisconsin operations of Common Cause, the national advocacy organization for enlarged government regulation of political advocacy, says: "Why should (Darrow) have an unfair advantage and be able to pay to have his name out there with corporate money, where his opponents have to use regulated, disclosed money?"

It is breathtaking. It is a measure of how many forms of speech have been made problematic by the campaign reformers' itch to extend government supervision of speech. The Darrow Group fears the threat of criminal penalties for an unlawful in-kind corporate contribution to a political campaign.

A core principle of an open society is that, in the words of Thomas Hobbes, liberties "depend on the silence of the law" -- what is not forbidden is permitted. However, because of the complexities and vagaries of McCain-Feingold and the rest of the government's metastasizing regulations of political activity, prudent participants in politics must assume that everything is forbidden until government gives permission.

In Colorado, Peter Coors of the beer family has won the Republican nomination for a U.S. Senate seat. Until he ran, he frequently appeared in Coors ads. He has stopped the airing of those ads, although ads for the Coors brand continue. But Russ Darrow has not appeared in any auto ads in more than a decade.

The Darrow Group dealerships spend $500,000 a month on advertising, which directly correlates with sales. If the group must go off the air in the peak autumn selling season -- when new models are reaching the showrooms, and before winter grips Wisconsin -- the business could be devastated, and with it the paychecks of the sales force whose compensation depends heavily on commissions.

The Supreme Court's affirmation of McCain-Feingold was a watershed in the nation's constitutional experience. The First Amendment will be forever open to statutory dilution, at least as it pertains to political speech. (The court has placed pornography essentially beyond the reach of regulation.) Henceforth, the guarantee of freedom of political speech is being steadily circumscribed in the name of political hygiene. The right of free expression can be trumped by the supposed imperative of combating "corruption" or "the appearance" thereof, which is to say, where probably no actual corruption exists.

Common Cause's desire to regulate car ads has no conceivable connection to preventing corruption. But the "corruption" rationale merely disguises the reformers' real agenda, which is to extend government supervision of speech whenever they think extension serves their partisan advantage.

Notice that you no longer hear what was, until recently, an incessant rhetorical drumbeat -- the campaign finance reformers' lament about there being "too much money in politics." What happened? Liberals discovered that they could raise lots of money. They rejoiced when Howard Dean so effectively mined the Internet for contributions that he opted out of public financing and its spending limits, causing John Kerry to follow suit. So liberals have adjusted their rhetoric, and their principles, such as they ever were.




George Will is a columnist for Washington Post Writers Group.

Commenting has been disabled for this item.