Political speech makes a comeback

Townhall ^ | 12/31/06 | George Will

[Valin]

WASHINGTON -- A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2-1, the court held -- unremarkably, you might think -- that issue advocacy ads can run during an election, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance ``reformers'') as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the ACLU and the NRA.

And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the Amendment, one more time). In 2004, WRTL was distressed because Wisconsin's senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush's judicial nominees, wanted to run ads urging people to ``contact Senators Feingold and Kohl and tell them to oppose the filibuster.''

But Feingold was running for re-election, and the McCain-Feingold ``reform'' makes it a crime for entities such as WRTL to use their corporate funds to broadcast an ``electioneering communication'' within 30 days of a primary or 60 days of a general election. An ``electioneering communication'' is one that ``refers to'' a candidate for federal office.

Although in 2003 the Supreme Court upheld McCain-Feingold, the court later said it would consider appeals against the law ``as applied.'' The majority on the three-judge court, preserving the distinction between electioneering and grass-roots lobbying, held that WRTL's ads were exempt from the McCain-Feingold election-eve blackouts of speech because the ads were not ``coordinated'' with a candidate's campaign and did not engage in ``express advocacy'' -- did not use the words ``vote for'' or ``vote against'' a candidate.

The dissenting judge wanted to examine the ``intent'' of the ads by examining their ``context,'' looking for clues as to whether the sponsor of the ads hoped to not only advocate an issue but to influence an election. Imagine: Judges scouring the political landscape, searching for evidence (people's past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is ``really'' the functional equivalent of electioneering (express advocacy).

Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should ``make a sensible citizen's blood run cold.'' An uncircumscribed inquiry into ``intent'' would become ``an intrusive process'' in which an organization's internal communications would be subpoenaed and political operatives and consultants would be ``put under oath and questioned about what they meant and intended and thought.''

The WRTL case is probably heading for the Supreme Court. There Justice Samuel Alito occupies the chair that Sandra Day O'Connor occupied when she voted with the majority in the 5-4 ruling that upheld McCain-Feingold.

Still, the reformers' zeal for regulating speech is undiminished. The Federal Election Commission recently fined some ``527'' groups (named for the tax code provision under which they organize) $630,000. Their offense? Issue advocacy in 2004 that, ``taken as a whole,'' could ``only be interpreted by a reasonable person as containing the advocacy of the election or defeat'' of a federal candidate. Editorial writers at The New York Times and The Washington Post, ever eager to regulate political advocacy not done by newspaper editorial writers, approved, although the Times thought the fines insufficient, and although the Post, calling the current law ``murky,'' thought the FEC should have enforced the murkiness quicker.

The Times no longer bothers to pretend that its rationale for speech regulation is fear of corruption or the appearance thereof. Rather, the Times justifies suppressing 527s on aesthetic grounds -- they are run by ``hard-edged activists'' and their ads are too negative. Presumably, suppressing 527s will elevate political discourse -- and, presumably, it is the government's business to enforce the elevation. The Post also is tellingly silent about the reformers' original corruption rationale for rationing political speech by restricting the political money that finances it. Instead, the Post says 527s wield ``significant'' -- by implication, excessive (relative to the Post's?) -- influence.

Bauer wonders why, absent a compelling government interest in combating corruption, unregulated speech resulting in influence should be a federal offense. When, as surely it will, the Supreme Court considers that question, it can begin undoing the damage it did affirming McCain-Feingold and licensing government to ration political speech.

[2ndDivisionVet]

Another reason, should we need one, to reject Senator John McCain out of hand as the GOP nominee for president in 2008!

[freedomfiter2]

Lap dancing-protected speech, Suggesting that a clueless Senator be replaced-unconstitutional. Liberal logic escapes me sometimes. It's a shame we have to reconstruct the US Constitution because we've allowed it to be hacked to bits.

[Valin]

I will not vote for that man. Not now..not ever!
And I'm pretty much a broken glass republican. (I'd crawl over broken glass to vote for a republican)

[Alkhin]

So this article is good news then in putting to rout the odious McCain-Feingold bill??

One hopes????

[StockAyatollah]

Every damned politician who voted for McCain-Feingold violated his oath to uphold the Constitution and deserves to be impeached...and that includes Bush!

[Valin]

One hopes????

Always my friend....Always.

[Jeff Chandler]

Damn my President for signing McCain/Feingold in the hope that SCOTUS would strike it down. Positively unmanly of him. That veto is there for a reason, there is no better reason than that bill.

BTW, the whole "campaign finance reform" was a smoke screen to cover Clinton's Chicom campaign finance scandal, and McCain championed the smoke screen. Maverick my ass. Craven politician is more like it.

[spinestein]

[The dissenting judge wanted to examine the ``intent'' of the ads by examining their ``context,'' looking for clues as to whether the sponsor of the ads hoped to not only advocate an issue but to influence an election.]


This is what happens when the citizens become too lazy to maintain due diligence over politicians and instead allow Congress to con them into farming that responsibility out to the courts.

And they're not finished yet. McCain and Feingold can't wait to get back to their thrones in Washington in the new congressional session and expand the territory of illegal political speech to cover all politically motivated groups who dare to raise or spend actual money *GASP* for the purpose of criticizing them. One wonders if this is one of those bits of history that ends with scenes of torches and pitchforks and very surprised government officials.

[preacher]

"Lap dancing-protected speech"

In Oregon it's live sex acts on stage as freedom of expression:
http://www.traditionalvalues.org/modules.php?sid=2458

[conservatism_IS_compassion]

Editorial writers at The New York Times and The Washington Post, ever eager to regulate political advocacy not done by newspaper editorial writers, approved, although the Times thought the fines insufficient, and although the Post, calling the current law ``murky,'' thought the FEC should have enforced the murkiness quicker.

This sounds hard-hitting to some, I'm sure. But to me it is soft compared to what it should have said. The distinction between "news" and "editorial opinion" is artificial; it has no basis in the Constitution. It is boob bait for suckers.

In actual fact the First Amendment protects the expression of political (or other) viewpoint without regard to positioning, be it on the front page or the editorial page (if any) of a newspaper. And that is essential to freedom of the press, because it would be impossible ever to prove that story selection did not reflect an agenda (in fact, story selection inevitably relflects an agenda).

The truth is that journalism inherently promotes journalism - meaning that journalism promotes the idea that criticizing those who provide our food, clothing, shelter, and security is more important than those necessities. And that explains why Big Journalism (a.k.a, "the MSM) promotes socialism. And, under the First Amendment, newspapers are entitled to do so freely. But so are you and I, and the NRA and the ACLU.

The wisest and most cautious of us all frequently gives credit to stories which he himself is afterwards both ashamed and astonished that he could possibly think of believing . . . It is acquired wisdom and experience only that teach incredulity, and they very seldom teach it enough. - Adam Smith

Half the truth is often a great lie. - Benjamin Franklin

Why Broadcast Journalism is
Unnecessary and Illegitimate

[jim35]

Rejecting John McCain is one of my favorite pastimes. The man is despicable. He is the greatest foe of the Constitution since... sorry, I can't think of anyone worse.

[jim35]

"...and that includes Bush!"

Well... I'd hate to join the Cynthia McKinney wing of the democRAT party here... let's just say they deserve to be punished. It's such a shame, too. I had such high hopes a few years back, believing that a Repub House, Senate and Administration would act like Republicans. Ah well. Live and learn.

[Vaduz]

True but the MSM blinders get bigger at every D.C. party.

[E.G.C.]

BTTT

[A. Pole]

Bump

[M.K. Borders]

Another reason, should we need one, to reject Senator John McCain out of hand as the GOP nominee for president in 2008!

Very much agree, but let me add something. I fear this man.

I fear his demonstrated vindictive instincts and how they would grow once he had the power.

Reflect; McCain's crusade for CFR begain ONLY after his primary defeat in NC and Michigan. He blamed (no riled at) the Christian Coalition and other RTL orgainizations who targeted him personally after New Hampshire.

The upshot? John McCain's response to honest, honorable, political dissent was to change the U.S. Constitution and attack the 1st Amendment for the sole purpose of stifling his opposition.

That my friends is Tyranny, and from a Senator/former Naval Officer and war hero.

What can he be capable of with more power? I don't want to know.

I consider McCain to be cut from the same self serving, vindictive mold as Hillary.

[Milhous]

Editorial writers at The New York Times and The Washington Post, ever eager to regulate political advocacy not done by newspaper editorial writers

Bravo to Mr Will for poetically dissecting an ongoing big journalism ploy to try to appropriate yet another extraconstitutional power for itself.

The distinction between "news" and "editorial opinion" is artificial;

Perhaps Mr Will's own membership in the exclusive club known as big journalism blinds him to this self evident fact.