First Amendment lockout

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

— Lewis Carroll, “Through the Looking Glass”

When Lewis Carroll wrote those famous words, known since to many generations of young people, it is highly unlikely he had in mind their application to the Bipartisan Campaign Reform Act signed into law by President George W. Bush on March 27, 2002. But he might as well have.

The use of the word “Reform” to describe this monstrously complex piece of federal legislation that adds mountains of red tape to an already cumbersome federal election process, and in so doing tramples on the First Amendment to the Constitution, would indeed make Humpty Dumpty proud. Only in the eye of Sen. John McCain, Arizona Republican and the legislation’s primary sponsor, and in the best tradition of Humpty’s philosophy, could this law be deemed — with a straight face — to “reform” anything.

Whether the First Amendment will be able to rebound from this body blow remains to be seen; but it’s down for the count right now.

“How,” one might ask, “with a Republican-controlled House of Representatives and Senate, and a Republican president self-proclaimed to be ‘conservative,’ did we reach the point at which a group of unelected bureaucrats [the Federal Election Commission], now wield veto power over what candidates for federal office and organizations supporting them, can say in the crucial weeks leading to an election?” “Why,” you might further inquire, “would the Republican Party deliver to us this monster that the Democrat Party, with nearly 40 years of being in charge of the Congress until 1994, was unable or unwilling to deliver?” “Surely,” you would conclude, “this is a bad joke. This cannot be true.”

Alas, it is no joke. And it is true. The Supreme Court has, after long months of deliberation, spoken; and in the words of its decision — nearly 300 pages in length, including numerous dissenting opinions — it has wrought great and perhaps permanent damage to the representative democracy so painstakingly crafted by our Founding Fathers.

All this was done with the willing participation of a majority party in power that professes to stand for and do the precise opposite of what this law and the opinion upholding it does. And what exactly is that? What does the Campaign Law of 2002 (I refuse to give it the credibility that might come through use of the word “Reform” in its title) do?

To answer that fundamental question, visualize the following scenario, which had been repeated innumerable times each election cycle: An American citizen of average means desires to contribute his or her legitimately earned dollars to an organization that represents their views, so the organization can advocate that shared position through publications or TV ads, in an effort to educate other voters in the final weeks preceding an election (which is when most voters make up their mind). Simple enough, right? Up to President Bush’s ill-advised stroke of the pen on March 27, 2002, yes; there was nothing wrong with this scenario. After that date, and especially now, in the wake of the Supremes having spoken from Mount Olympus, the answer is very different.

The Campaign Law of 2002 now forbids this simple process from operating; under penalty of criminal sanctions, no less. Organizations as diverse as the National Rifle Association and Greenpeace, which exist largely to advocate on behalf of their members, now cannot do so in the media in the crucial final weeks before elections. Why not? Because a majority of House and Senate Members, and a Republican president, say so, that’s why.

There are many other egregious violations of First Amendment rights throughout the Supreme Court’s convoluted opinion. For example, one of the ways in which political parties traditionally increased voter turnout and knowledge of candidates and issues, was by soliciting and spending “soft dollars” — which are actually nothing more than lawful campaign contributions not tied to a particular candidate — to build the party’s grass roots for all its candidates.

While this practice was never a “loophole” in the post-Watergate campaign law that started us down this slippery slope — it was in fact expressly considered and approved by the Congress in passing the earlier law — “soft money” became the linguistic equivalent of a “weapon of mass destruction”; used with unfortunate precision by Mr. McCain and his now-celebrating colleagues.

Aside from the inexplicable decision by George W. Bush to sign this law, two facts stand out as perhaps most telling of the state of modern politics in America:

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