Analysis  

Court Guts First Amendment

by Mark Tapscott

The Supreme Court has let politicans outlaw criticism from their opponents.

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President Reagan probably thought the most significant aspect of his appointment of Sandra Day O'Connor to the U.S. Supreme Court in 1981 was her status as the first woman to sit in judgment as a member of the nation's highest court. Little did Reagan know she would two decades hence strike a grievous blow against the First Amendment.

But that is what O'Connor did Dec. 10 by joining two other justices appointed by Republican presidents — George Bush's David Souter and Gerald Ford's John Paul Stevens — and a pair of Bill Clinton appointees — Ruth Bader Ginsburg and Stephen Breyer — in upholding the constitutionality of the Bipartisan Campaign Reform Act of 2002, AKA McCain-Feingold.

The decision came as a shock to many, though perhaps none more so than President George W. Bush, who reportedly signed McCain-Feingold last year despite having serious reservations, confident that the Court would at least strike down the new law's provisions banning "soft money" contributions to political parties and "issue ads" bought by public interest advocacy groups on radio and TV during congressional campaigns.

Dissenting Supreme Court Justice Antonin Scalia called Dec. 10 "a sad day for freedom of speech." And so it was, because the Court's decision upholding the McCain-Feingold campaign finance reform presages more assaults on our First Amendment rights. There is always a price to be paid by the body politic when expedience overrules principle, as happened when Bush decided to sign the bill, but never before in American history has that cost been extracted so directly from the fundamentals of constitutional liberty.

That is why it is vital that we be clear about what the O'Connor majority of the nation's highest tribunal approved: the Constitution says "Congress shall make no law . . . abridging the freedom of speech," but Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer say Congress can legally ban citizen contributions to political bodies like the Republican and Democratic national committees for activities like "get-out-the-vote" campaigns and silence political speech expressed in radio and TV "issue ads" beginning 60 days before a general election and 30 days before a primary.

Avoiding the "appearance of a corrupting influence" of money in politics is more important to the justices than preserving our unabridged right to speak our minds about a democracy's most important political issue: who should represent us. These five justices have effectively insulated congressional incumbents from criticism in radio and TV ads for two months before an election.

It ought to be noted, as it was by Washington Post columnist Robert Samuelson, that the Court's concern that allegedly excessive influence of money allows the rich and powerful to buy excessive access to policymakers and thereby inordinately shape policy outcomes in Congress and the executive branch is confounded by the facts of government spending. The top 10 percent of American taxpayers account for slightly more than half of taxes paid. One might think political operatives with such power would contrive to bear somewhat less of the tax burden.

"Meanwhile, most spending goes to the poor and middle class," Samuelson noted. "In fiscal 2003, federal spending, excluding defense and interest payments, totaled $1.6 trillion. Of that, 81 percent went to social programs, including $475 billion to 47 million Social Security beneficiaries, $249 billion for 41 million Medicare recipients, $161 billion for 40 million Medicaid beneficiaries and $25 billion for 21 million food stamp recipients."

Regardless, because it abridges a fundamental constitutional right, McConnell, United States Senator, et al. v. Federal Election Commission, et al. ranks with such previous infamous decisions as Dred Scott, upholding slavery in 1858, and Plessy v. Ferguson's 1896 approval of separate-but-equal access to public facilities like trains and schools.

There are four particularly disturbing implications of McConnell v. FEC. First, it encourages elected officials, bureaucrats, and judges at all levels of government to seek more curbs on political speech. The decision's logic is compelling: political speech that is "bad" two months prior to an election must also be corrupting two months and a day before the vote. Does anyone seriously doubt that after the 2004 elections there will be efforts to lengthen the ban from 60 days to 90 days or even 120 days? Why stop there? The nature of government is to seek to expand its power, and as government regulation of political speech increases, our freedom is decreased.

Second, the same logic will be applied sooner or later to political ads appearing in other media before an election. The message contained in a corrupting TV spot must also be corrupting when it appears in your daily newspaper, on talk radio, or on the Internet. As Justice Thomas noted: "The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press."

So, not only is the stage thus set for a vast expansion of the FEC — more regulation always means more bureaucrats — but the range of media in which government silences political speech will grow. Today TV, tomorrow the Internet? The present decision's potential harm to the First Amendment dwarfs the abuses sanctioned by the infamous Alien and Sedition Acts that forever marred John Adams' White House years.

Third, not only is the right of all citizens to express political views fundamentally compromised, but their right to receive information that is critical to their ability to form political opinion is severely injured. Under McCain-Feingold, public interest groups — which are nothing more than individual citizens joining together in a collective expression of political opinion and activity — are barred from informing voters about the stands being taken by candidates on the most important issues of the day.

As a result, Congressman X may be suspected of favoring repeal of the Clean Air Act, but groups like the Sierra Club and the Environmental Defense Fund cannot voice their concerns via radio or TV spots for two full months before election day. For the same reason, pro-lifers are forced into silence on the radio and TV advertising front, as are pro-choicers, pro-gun righters and handgun ban advocates, and proponents and opponents of nationalized health care. There is no comfort in knowing the Supreme Court is an equal-opportunity silencer of objectionable political speech.

Fourth, entirely apart from the urgency of political speech associated with a campaign, incumbent congressmen often find it most difficult to campaign for re-election during the September-October months of an election year because those are the months when Congress is typically wrapping up its work on the most controversial issues.

Under the Court-blessed McCain-Feingold, senators and representatives who might prefer to cast potentially unpopular votes on critical legislative proposals no longer need worry about facing a barrage of radio and TV ads from citizen groups advising them how constituents want them to vote and threatening to remember whether their advice was heeded come election day.

Put another way, incumbents will thus be freed of a significant portion of the burden of listening to constituents before deciding how to vote on legislation those same constituents may care about deeply. Reformers may claim such a situation empowers conscience in Congress but the truth is that the Court has thus pushed America a large step away from its founding ideal of representative government and toward rule by a tenured, unaccountable aristocracy.

No wonder James Bopp Jr., general counsel of the James Madison Center for Free Speech, said the Court has "gutted" the First Amendment. "The Court's affirmation of [McCain-Feingold] severely damages citizen participation in the American system of government and fundamentally alters American political discourse without any constitutional warrant and in direct contravention of constitutional mandate."

There is hope if the politicians and activists who opposed McCain-Feingold — mostly, but not all, conservatives and libertarians — and the news media that now face the real prospect of effective prior restraint on publication of political views can get together to lead a new coalition to defy the Court and challenge the law at every turn in the 2004 campaign.

TV news directors, for example, could invite advocacy groups and supporters of congressional challengers against incumbents of both parties who voted for McCain-Feingold to read their issue ads' texts during newscasts throughout the final two months before the election.

Similarly, newspaper editors should publish such texts, talk radio hosts discuss them, and online journalists saturate cyberspace with them. Soon, the futility of banning political speech will be clear even to Congress, and the offending provision of McCain-Feingold will be repealed.

But don't hold your breath waiting for such a coalition! Among the most dispiriting aspects of the McCain-Feingold debacle is the fact that journalists are largely applauding a decision that sooner or later will restrict their right to report and opine as they think proper.

Other than the Washington Times (full disclosure: my career as a newspaper journalist includes four years at the Times), which has often lambasted McCain-Feingold for its injurious impact on the First Amendment, it has been difficult since Dec. 10 to find a major newspaper editorial criticizing the Supreme Court decision.

One newspaper that did was the Omaha World-Herald, which observed:

"Say this for Wednesday's U.S. Supreme Court ruling on campaign finance regulation: It was broad. It swallowed the McCain-Feingold law nearly whole. This should be seen as a troubling outcome, chiefly because it is at odds with the First Amendment. The law's most disturbing provision is that it all but prohibits advocacy groups from mentioning or even depicting a candidate in a federal election . . . If the First Amendment doesn't (or should we say didn't?) exist to protect that, then what other forms of expression may next be in danger?"

The World-Herald was a lone ranger on the issue, however. Both the New York Times and the Washington Post were ecstatic that the Court upheld a law both had vigorously supported. The Times called the decision a "triumph," while the Post noted: "The decision, the critical portion of which was written by Justices Sandra Day O'Connor and John Paul Stevens, is a watershed among the court's campaign finance cases for its frank realism about political practice."

Quite simply, the Post editorialist declared, the decision represented the laudable culmination of "years of Supreme Court precedent" and guarantees that "American democracy is not defenseless and that purchased access to the powerful is not protected by the right of free speech."

Similar comments dominated the editorial pages of America's great dailies, with many encouraging Congress and the federal courts to look for new ways of expanding regulation of political speech in the interest of preventing the appearance of an alleged evil. The decision, claimed the Los Angeles Times, "signals an overdue recognition of the power and the danger big money poses in federal elections and public policy . . . the high court's clear affirmation of the measure, shifting the balance a bit away from free-speech absolutism, should provide the momentum for further reform."

Meanwhile, the Philadelphia Inquirer called the decision "surprising, momentous and welcome," and cheered that "the court's ringing opinion, with its strong, pragmatic language about money's real-world corrupting impact, and its impatience with the theory that any restriction on the flow of money to politics is a restriction of political speech erects a strong platform for further reform."

The Atlanta Journal-Constitution said the decision "cracked open the door for potentially more important and far-reaching reforms in the future" and contended that "while money may be speech, too much money is a bribe."

The Baltimore Sun hailed the decision as "a victory for Arizona Sen. John McCain and his bipartisan band of renegades" but cautioned that "it just opened a door." It is a door the Sun wants Congress and the federal courts to walk through as quickly as possible because "schemes aplenty are already in place to evade the ban on unlimited 'soft money' donations to political parties and unregulated spending on last minute 'issue' ads that are the central features" of McCain-Feingold.

Such commentary no doubt would sadden journalists of another era like the Chicago Tribune's bigger-than-life publisher, Col. Robert McCormick, who recognized that an independent press would be forever lost without preservation of the constitutional safeguards established by the First Amendment. McCormick put his considerable money and influence on the line in taking a case critical to the preservation of a free press all the way to the Supreme Court.

As a result, in 1931, the Court struck down Minnesota's Public Nuisance Law, which allowed prosecution of journalists publishing any information arrogant public officials judged defamatory. That decision, which effectively ended legalized prior restraint of the press in America, was the culmination of an expensive legal and media campaign financed by McCormick, the rock-ribbed conservative isolationist who absolutely delighted in publishing a truly independent newspaper, even one that mistakenly proclaimed Tom Dewey the winner of the 1948 presidential election.

"The control of the press is not given to the legislature but is reserved to the people. If there is an abuse of the liberty, it is for the people to decide so in the persons of the jurymen, not for the legislature to restrain it in advance," argued McCormick's attorney, Weymouth Kirkland. McCormick was heavily involved in writing Kirkland's briefs, according to the publisher's biographer, Richard Norton Smith.

Will the modern Col. McCormick please stand up?

© Copyright 2008, Liberty Foundation

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