- The Washington Times - Friday, March 30, 2001

It has taken a long time for the national conscience to focus on the pretty promises and unpleasant quiddities of that famous piece of legislation known as McCain-Feingold, a bipartisan Senate bill to drive from politics demon money. In fact, I am not sure that much of the nation even now is focused on the bill. Opinion polls regularly show campaign finance ranking low among the concerns of ordinary Americans, about at the level of concern for sun spots. Yet a few civil libertarians are starting to worry along with a few writers. Their concern is over the bills indifference to the First Amendment.

That not more than a handful of writers is concerned about preserving the First Amendment is no surprise. Very few of them have anything daring to say anyway. The McCain-Feingold bill will limit what can be said about politicians as they campaign for national office. Commenting boldly or independently about politics is difficult for many American writers, particularly Washington insiders. From all I can tell, they would rather not have write something jarring, particularly about an incumbent; it could cost them one of their sources. Ostensibly McCain-Feingold only seeks to eliminate contributions to campaign utterances by political parties. However, word is getting around that that is a limitation on the First Amendment. A more careful reading of the corpus of campaign finance reform reveals it all to be a threat to free speech, free association, and the right "to petition the government for a redress of grievances."

Why are the senators who favor McCain-Feingold pushing a bill so destructive to basic American freedoms? Essentially they seem to fear for their virtue. Down deep they believe they all are crooks. Now I know my friend Sen. John McCain is not a crook, and possibly Sen. Russell Feingold is as clean as a hound´s tooth. Yet the gravamen of their bill is that the average congressman can be bought. Thus contributions to candidates must be limited and contributions to issue advocacy and such organizations as the Sierra Club and the National Rifle Association are dangerous too. Such contributions endanger the fragile integrity of those politicians.

Of instance, unlimited contributions from the Philip Morris Co. to the Democratic Party´s "soft money" campaigns might turn all the Democrats on Capitol Hill into smokers. If Phillip Morris was free to throw the contributions around with abandon, the senators might start putting tobacco vending machines in the hallways of the Senate office buildings. Senators blessed by large contributions from "the tobacco giant" might begin to make suave references to what a great company Philip Morris is. This in essence seems to be what the senators fear. What else could their fear be, that large campaign contributors might get them to do already illegal things for their contributors? We already have laws against graft and other corrupt legislative practices.

Thus to protect their virtue senators are going to suppress free speech that the Founding Fathers sought to protect in the First Amendment. That the media are not alarmed is surprising. During the McCain-Feingold debate some senators have already voted for limiting the charges media can impose on political advertisement during campaigns. As Sen. Robert Torricelli said to a perplexed Edward Fritts, president of the National Association of Broadcasters, "You are going to be part of the reform." Incidentally Mr. Torricelli´s last Senate campaign has come under investigation by law enforcement agencies for criminal breaches of existing campaign finance law. Some senators really do need to have their virtue policed.

Friends of the First Amendment are hoping McCain-Feingold and similar campaign finance laws will eventually be thrown out by the Supreme Court for their many unconstitutional excrescences. The latest word is that the House of Representatives will spare the court by defeating the bill if it or anything like it is sent to the House. Yet maybe there is another way to avoid McCain-Feingold´s suppression of political expression even if it becomes the law of the land.

For then though political groups will be barred from employing writers to make political statements, surely they will not be barred from employing artists, even performance artists, from practicing their art. Political parties could accept unlimited contributions to pay the celebrated Chris Ofili to film a series of depictions of political opponents covered in sacred elephant dung. Performance artists could be hired and filmed singing friendly jingles about a candidate´s many marvels and his opponents ominous shortcomings. Possibly even the National Endowment for the Arts could pay from some of this "advocacy art." One would not have to fear that a campaign finance reformer would limit the expressions of one of these true American artistes. That would be against the First Amendment.




R. Emmett Tyrrell Jr. is editor in chief of the American Spectator.


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