- The Washington Times - Monday, December 2, 2002

The beginning of the end of the years-long debate on the merits of campaign finance "reform" starts Dec. 4.
A special three-judge federal panel in Washington will hear arguments from 84 plaintiffs and attorneys representing the Federal Elections Commission and the Federal Communications Commission. At stake in the omnibus lawsuit filed by Sen. Mitch McConnell, Republican of Kentucky, (McConnell, et al. vs. FEC, FCC) is nothing less than the future of political debate and the ability of American citizens to criticize the government.
To underscore the absurdity of the regime authored by Sens. John McCain and Russell Feingold, FEC legal counsel recently warned that comedians like David Letterman and Jay Leno, who air quips on political topics, may come under new Bipartisan Campaign Reform Act (BCRA) scrutiny for "electioneering." The apparent threat posed by this free expression of political humor is that jokes may make an impact on the outcome of elections. Good heavens.
Aside from the dispute over public-policy organizations running advocacy ads on TV and radio (banning issue ads 60 days from a general election and 30 days from a primary), the FEC and its lawyers also appear to be at war over speech content and association, two issues addressed in vague and difficult language in the BCRA.
Not only does the "what you can say may hurt you" approach smack of the kind of censorship found in tinhorn dictatorships, but it is also patently unconstitutional. By confounding the long-held traditions of American politics, FEC lawyers are now providing ammunition for the advocates of public financing for campaigns.
After all, if the nation's airwaves are, in fact, purely public domain controlled by the federal government, then content can be controlled. A dangerous farce, indeed.
In fact, the government's defense case will hinge on the assertion that issue advocacy, political speech and campaign-related communications are one and the same. Not true.
In response, the plaintiffs ask, so what? So what that millions of Americans who pool their resources in hundreds of advocacy groups want to make their voices heard? Further, to allow the federal government to regulate the content of political and issue speech means that we will allow the speech police to determine how Americans can make their voices heard.
Consider a few scenarios that may subject these same corporations, interest groups and individuals to the full force of the BCRA's criminal penalties.
A corporation hires a former employee of a federal elected official or political party. The new employee communicates with elected officials and candidates, or directs paid media efforts on behalf of the corporation to influence public opinion on issues considered by federal lawmakers. Under the BCRA, the new employee and the corporation could be subject to prison time and fines for illegal "coordination" of activity with a federal elected official or candidate.
Consider, too, a case in which a corporation uses a vendor for purposes of direct mail, TV, radio, Internet or other mass-marketing purposes. The same vendor provides services for a federal elected official or candidate. The corporation may decide to use TV or radio to stake out a position on an issue. Under the BCRA, the vendor and corporation could be subject to prison time and fines for again illegal "coordination" of activity with a candidate for federal office.
Consider a recent opinion by Supreme Court Justice Antonin Scalia, who described what federal government campaign regulators will look and sound like under the banner of "reform:"
" 'Attention all citizens. To assure fairness of elections by preventing disproportionate expression of views of any single powerful group, your government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate.' This Orwellian announcement … endorses the principle that too much speech is an evil that the democratic majority can proscribe … that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the 'fairness' of political debate."
The court could bring some peace and justice to the matter of an open political marketplace by cutting out the BCRA's unconstitutional fangs. Indeed, the new law that took effect on Nov. 6 has a severability clause, enabling the court to pick and choose from among its offerings.
Short of that, the wrangling will continue, even as individual and group speech including late-night satire is slowly strangled by a government bent on censorship. The health and vitality of our system of government is at stake, and that's no laughing matter.

Phil Kent is president of Southeastern Legal Foundation, a constitutional public interest law firm serving as co-counsel and plaintiff in the McConnell lawsuit.


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