- The Washington Times - Thursday, July 5, 2001

For freedom lovers everywhere, it cannot be a happy day when the U.S. Supreme Court of all institutions wacks both the First Amendment's protection of free speech and the freedom of association inherent in the political party system, two of the most important pillars of the American republic. In a tortuous decision written, appropriately enough, by Justice David Souter, the court delivered a mighty blow against the ability of individuals, through their voluntary association within political parties, to propagate their views and to elect their party's candidates to implement those ideas. The court did so by upholding limits on what state and national political parties may spend in coordinated activities on behalf of their candidates for federal office.

In the 1976 landmark Buckley vs. Valeo case, the court upheld Watergate-era legislated limits on so-called hard-dollar campaign contributions by individuals and political action committees to candidates. But it struck down limits on candidates' expenditures as a violation of free speech. Since then, the court has repeatedly confirmed that efforts to limit expenditures represented unconstitutional restrictions of free speech. Apart from abruptly moving in the opposite direction last week, what makes this decision especially surreal is its juxtaposition with a 1996 decision involving the very same case.

The issue actually dates to 1986, when the Colorado Republican Party spent $15,000 on radio ads attacking the voting record of Democratic Rep. Timothy Wirth, who had just announced his candidacy for the Senate. Although the Republicans had not even chosen their candidate yet, Democrats filed a complaint with the Federal Election Commission, arguing that the ads violated federal "hard-dollar" spending limits on the party. The Supreme Court disagreed in 1996, holding that the party-paid ads were "independent expenditures" that were not subject to the "hard-dollar" limits.

The case was then remanded to the lower courts to determine whether the "hard-dollar" limits involving coordinated expenditures by parties on behalf of specific candidates were themselves constitutional. These were the spending limits the court upheld in its recent ruling. But not before twisting itself into a 5-4 knot. Writing for the majority, which included Justice Sandra Day O'Connor, Justice Souter irrationally concluded that the parties were capable of corrupting their own candidates by supporting them. Completely disregarding the overwhelming incentives individuals have to freely associate with like-minded people to effect government policy by electing their fellow members, Justice Souter wrote, "Parties function for the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape." Notwithstanding the fact that James Jeffords' recent departure from the Republican Party effectively negated his reasoning, Justice Souter maintained that donors, whose "hard-dollar" contributions to parties, by the way, are strictly limited, "can use parties as conduits for contributions meant to place candidates under obligation."

In the two decisions involving the same case, the Supreme Court seems to be saying that independent expenditures by parties, which are clearly intended to help their candidates, present no danger of corrupting those candidates, while coordinated expenditures by the parties on behalf of the same candidates do. That is not all that is baffling about this case. To quote Justice Clarence Thomas' lucid dissent: "I remain baffled that this court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our founders sought to defend." A sad day, indeed.

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