Posted on 03/27/2002 11:31:41 AM PST by Dave S
COMMENTARY Congress Turns Political Speech Into a Crime
By FLOYD ABRAMS
The most memorable moment in the senatorial race between Hillary Clinton and Rick Lazio was when the latter strode up to the former in mid-debate and demanded that she sign a document promising to dissuade out-of-state supporters from placing ads on TV during the campaign. If she did, Mr. Lazio said he would do the same, and New York would have an election free from outside interference.
Ultimately (after the dust settled on the critical policy issue of whether Mr. Lazio had moved too threateningly toward Ms. Clinton), she agreed. Nothing was heard during the campaign from the Sierra Club, pro-choice, pro-gun control and other groups. As for Mr. Lazio, he kept his part of the bargain by getting conservative groups -- pro-life, NRA, etc. -- to stay mute.
To general acclaim, the election was conducted without involvement from such groups. A similar effort is underway in the South Dakota senatorial race between Tim Johnson and John Thune, where an agreement to silence all outside supporters of both candidates is being sought.
There is a deeply disturbing aspect to this, and to the thinking that underlies it. The Lazio-Clinton deal was hailed because it was thought to close a "loophole" in campaign finance law that allowed out-of-state speakers to distort election discourse. Similarly, the Shays-Meehan campaign finance bill was adopted recently to close other supposed loopholes and thus purify the electoral system.
But the problem is that in both cases the loophole was speech itself. Consider the logic of the proponents of speech restrictions in both cases.
Politics costs a lot of money, so for the sake of fairness, and to avoid corruption or a perception of it, we should limit (by law or pressure) amounts spent on campaigns and ultimately speech. To assure that contribution limits are inviolate, we must limit the amounts supporters spend even in expressing their views on pressing public issues so long as those statements could be understood as favoring or disfavoring one candidate or another. To assure that that effort succeeds, we should view with disdain the claim of issue-oriented groups at times close to an election that they are speaking about issues at all, or even on their own behalf. To assure that these rules have enough bite, we should impose stern criminal penalties on violators.
A visitor from Mars might ask, Why are you limiting speech about elections? When speech matters most, why should we allow it least?
But that's what we are doing. In the New York senatorial campaign, the groups that wished to speak were hushed by the candidates themselves. If Shays-Meehan is held to be constitutional, the threat of criminal sanctions will obviously deter hard-core political speech that has long been considered worthy of the highest degree of First Amendment protection. It is, in fact, meant to do just that.
The bill could hardly be clearer. Issue-advocacy groups such as the Sierra Club or the National Rifle Association, as well as unions, corporations and others, are now to be barred from placing any TV advertisement within 60 days of a general election that even "refers to" a candidate. There can be no mention, critical or not, in those ads, of the sponsors of legislation within 60 days of their efforts at re-election.
Even an ad in Arizona in that period urging Sen. John McCain to vote for or against his own legislation would be illegal. Nor could a union place an ad within 60 days of an election (as the AFL-CIO did during the 1996 campaign) urging named members of Congress to support a higher minimum wage. A corporation would be barred from placing an ad opposing the legislation.
Such sections of the law are not only an affront to core First Amendment principles -- how can criminalization of speech about public affairs possibly be justified? -- but profoundly antidemocratic. The law permits federal candidates themselves to set the agenda on what topics are to be discussed during their campaigns and with what intensity. Of course the media may still comment as they wish: Even Congress understood that the First Amendment could not begin to tolerate direct press censorship. But other groups and individuals have rights too, even if Congress chooses not to recognize them.
There is another disquieting aspect of the new law -- its apparently wilful lawlessness in containing provisions directly contrary to a quarter century of binding Supreme Court precedent. The court has not been silent on the question of when an "issue advertisement" (which may not be regulated at all under the First Amendment) may be treated as nothing but a campaign endorsement and thus subject to regulation. Only "express advocacy" of a candidate's election, the court has said -- such as overtly urging the public to vote for or against a candidate -- places the advertisement outside the fully protected category. A mere reference to a candidate -- the standard adopted by the new law -- does not come close to complying with the court's mandate.
None of this happened by accident. It is not some sort of drafting error. It all happened, I believe, as part of a good faith but deeply flawed effort to close loopholes, whatever the constitutional cost.
President Bush captured the essence of this part of the new law perfectly in response to questions on Sunday. The bill, he said, is "trying to control who can participate in the election process in the last 60 days."
Just so. And for this reason, this provision, and others that also seem rooted in the notion that speech about elections is so dangerous that it must be rationed or silenced altogether, will be presented to the courts for their review.
Mr. Abrams is one of the attorneys representing Sen. Mitch McConnell (R., Ky.) in a challenge to the constitutionality of campaign finance legislation.
This is going to be quick and easy, and a lot of the bill will be dead on arrival, killing this for three or four decades, as opposed to three or four years. Not bad, IMHO.
He said that and still signed off on it. What was he thinking?
EBUCK
It all happened, I believe, as part of a good faith but deeply flawed effort to close loopholes, whatever the constitutional cost.
There was no good faith effort here. The two motivating factors were the clauses that will help incumbents, and the idea that politicians could get a "freebie" by passing a "reform" bill that will be struck down by SCOTUS.
Knowing that it was defeated in the SCOTUS may keep it off the table for a generation or two.
EBUCK
Sorry, the earlier one had scrolled of the immediate list before I got up. Guess I should have done a search. Thanks.
I'll take the generation or two, thank you.
EBUCK
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