Just a Gag?
Congress prepares to repeal freedom of speech.
BY PETE DU PONT
Wednesday, February 13, 2002
The anti-First Amendment crowd is at work in Washington this week, attempting to limit political speech during election campaigns. Their vehicle is the Shays-Meehan campaign-finance bill, and their goal is to drive the money out of politics--even if it requires driving free speech out of political campaigns.
Rep. Harold Ford (D., Tenn.) wondered on television last summer why "any organization regardless [of whether] they are Democrat or Republican, conservative or liberal, [should] be allowed to come in and influence the outcome of elections solely to advance some narrow interest of theirs."
Why should they be allowed? Because the First Amendment says it's their right. Because the framers of the Constitution believed, as James Madison and Alexander Hamilton argued in Federalist No. 51, that the civil rights of citizens in the new republic depended on the voices of many interests being heard. And because if only candidates and the establishment media are allowed to speak in the 60 days before an election--which is the intent and effect of the Shays-Meehan bill--ordinary people will be all but voiceless and powerless in the crucial period during an election.
No doubt members of Congress think that is a good idea, because it is much easier to get re-elected if your opponent lacks the resources to mount an effective campaign. What elected official wants groups interested in some issue mucking about in his voting record and being able to air what they find in prime time?
But the question under debate is whether people of similar beliefs--be they anti-death-penalty liberals or pro-life conservatives, unions or corporations or nonprofits--may pool their resources to increase their political impact by talking on television about issues and candidates in the 60 days (the only days that really count) before an election.
Shays-Meehan says no; journalists can talk on television or radio, but others interested in an issue cannot. But the First Amendment is very clear that our opinions as citizens and the opinions of the press are equally protected. ("Congress shall make no law . . . abridging the freedom of speech, or of the press.") And so was the U.S. Supreme Court in Buckley v. Valeo, the definitive and unanimous 1976 campaign-regulation decision: "The concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
What Shays-Meehan (and its Senate counterpart, McCain-Feingold) does is restrict the speech of challengers and enhance the speech of incumbents; it restricts the speech of citizens and thus enhances the speech of the media on issues they care about.
In an earlier column, I discussed some of the difficulties of political speech bans. But consider the actual effect of McCain-Feingold: Planned Parenthood and People for the American Way, the National Rifle Association and Americans for Tax Reform, your local Stop the Highway or Cut Property Taxes Committee--all of them among Rep. Ford's "narrow interest" organizations--would be forbidden to use their resources to run "electioneering communications" after Labor Day in an election year. But every newspaper and television station in your town and state could still support or denigrate every candidate every day. Why would any sensible person vote to limit the speech of individuals and organizations but not that of the media, which have as many opinions and biases as each of us does?
When McCain-Feingold was before the Senate last March, 40 senators voted for Sen. Fritz Hollings's proposed constitutional amendment that would exclude campaign speech from the protection of the First Amendment. As wrongheaded as it is, it is at least honest. Shays-Meehan's supporters propose to achieve the same result by stealth, for they know full well that a constitutional amendment has no chance of passing.
It is hard to imagine anything worse for the republic than to have campaign speech regulated, supervised, watched, controlled and authorized or prohibited by an agency of the national government. Our Founding Fathers carefully wrote the right to express our views on the issues of the day into the Constitution, and we should make sure it is not written out.
Mr. du Pont, a former governor of Delaware, is policy chairman of the Dallas-based National Center for Policy Analysis. His column appears Wednesdays.
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I think I heard the bill goes to a vote at 2 a.m. tomorrow (Thursday) morning, so we still have time to contact our Congressmen.
PROTECT THE FIRST AMENDMENT