- The Washington Times - Monday, February 11, 2002

Even as U.S. House Speaker Dennis Hastert schedules a Feb. 12-13 floor debate and vote on the campaign-finance legislation, the forces of government suppression are fast at work to ensure silence on public, political debate. The constitutional stakes are high, and it's time for clarity as the nation's lawmakers consider their options.
The Enron debacle, held up by the "axis of reform" of Senate Majority Leader Tom Daschle and House Minority Leader Dick Gephardt as the Tammany Hall of campaign finance corruption, is actually no example at all. The quid pro quo "smoking gun" of White House and congressional action benefiting the now-bankrupt corporate giant in return for millions in campaign contributions has not materialized. Further, the Enron dollars in question are hard money contributions given directly to Republican (and Democrat) candidates, while the McCain-Feingold/Shays-Meehan legislation would ban so-called "soft money" contributions to political parties an entirely different proposition.
The best thing that can be said about the McCain-Feingold/Shays-Meehan legislation is that the nation will ultimately learn a lesson in the limits of constitutional free speech. The all-out assault by so-called reformers promises treatment for the symptoms of electoral abuses at the expense of the First Amendment. The sad but inevitable truth is that congressional efforts may well wind up in our nation's courts.
Campaign contributions, and the ability of individuals to speak out on issues, are political speech the most protected of all our First Amendment free-speech rights. The Supreme Court has said that reasonable campaign contribution limits do not offend free speech. Equally clear, however, is that limits on advocacy advertising, independent expenditures by individuals and cut-off times for speaking out on the nation's airwaves place free speech protections in jeopardy. Therein lies the rub for the McCain-Feingold "reformers."
Provisions in the House and Senate versions of the bill banning unions and organizations from running issue advocacy ads 60 days before a general election and 30 days before a primary are blatant censorship of free speech. Federal election laws requiring disclosure of donors who give money for advocacy ads, like their candidate counterparts, are a better course, allowing for the light of public scrutiny on not only what is said, but who is saying it. As the venerable Supreme Court Justice Louis Brandeis wrote decades ago, "[The Founding Fathers] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth … the remedy to be applied is more speech, not enforced silence."
Under McCain-Feingold, TV stations would be required to offer political advertising time at special low rates, touching not only free speech, but also constitutionally protected property interests enjoyed by the private sector. Again, the seduction of the solution is in the "reasonableness" of the proposal, but the effect on broadcast media could be devastating. In essence, TV stations would become government-controlled political outlets, a concept alien to another First Amendment right, freedom of the press.
And lest the unsuspecting, well-intentioned public believes that McCain-Feingold/Shays-Meehan is comprehensive reform, it should be pointed out that the bill applies to some and not to others. Why are American Indian tribes (which contributed $1.5 million in political money to Democratic Party operations in 2000) exempt from the stringent gifting and speech bans placed on other groups? Sadly, the smiling, determined face of so-called reform is evolving into the same tired face of special-interest exceptions!
The cry for campaign-finance reform, arising from decades of fundraising abuses and perceived special-interest influence on lawmakers, is a legitimate one. What is unacceptable is any effort to stifle vigorous, public, political debate described by congressional legal analysts reviewing the Shays-Meehan bill as a perception by lawmakers that "the First Amendment is a loophole that must be closed." Also apparent in the strident efforts of reformers is a scorched-earth attack on private funding for political campaigns, leading to the inescapable conclusion that the real agenda underlying the effort is taxpayer-financed political campaigns.
So, to the president of the United States and the members of Congress considering McCain-Feingold/Shays-Meehan, buyer beware. The courts may well be the last line of constitutional defense of free speech.

Phil Kent is president of Southeastern Legal Foundation, a constitutional, public-interest law firm.



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