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December 2, 2002

Litigating freedom of speech

WASHINGTON--Come Wednesday, in a District of Columbia courtroom, litigation begins that will reach the Supreme Court and determine the future of political speech in America. At issue is the Bipartisan Campaign Reform Act (BCRA, alias McCain-Feingold), by which the just-adjourned 107th Congress followed in the footsteps of the 5th Congress, which enacted the Sedition Act of 1798.

A congressional supporter of the Sedition Act said it was aimed at speech intended to ``inflame ... constituents against the government.'' BCRA's enactors were equally candid about targeting annoying speech.

Sen. Wellstone, D-Minn.: ``These issue advocacy ads are a nightmare.'' Sen. Cantwell, D-Wash.: BCRA ``is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves.'' Sen. Jeffords, I-Vt.: Issue ads ``are obviously pointed at positions that are taken by you saying how horrible they are.'' Sen. Daschle, D-S.D.: ``Negative advertising is the crack cocaine of politics.'' Sen. McCain, R-Ariz.: Negative ads ``do little to further beneficial debate and a healthy political dialogue'' and BCRA will ``raise the tenor'' of elections.

So BCRA is government's--the political class'--assertion of a right to fine tune the ``tenor'' of political speech, to make it ``healthy'' and ``beneficial'' by suppressing speech by ``outside interest groups.'' And BCRA's enactors frequently stigmatized one group as especially deserving of suppression by BCRA's provisions that restrict political communications by such groups within 30 days of a primary or 60 days of an election.

Rep. Schakowsky, D-Ill.: ``If my colleagues care about gun control, then campaign finance is their issue so that the NRA does not call the shots.'' Reps. Meehan, D-Mass., DeLauro, D-Conn., and Shays, R-Conn., and Sens. Reid, D-Nev., and Durbin, D-Ill., cited the NRA's political communications as a problem of political hygiene that BCRA would solve.

Having been specifically named as a target of legislation with the proclaimed purpose of suppressing the speech most protected by the First Amendment (political speech) at the most crucial time (near elections), the NRA is one of many plaintiffs (others are the American Civil Liberties Union, the Democratic and Republican Parties of California, the AFL-CIO) challenging BCRA's constitutionality. The NRA's lead attorney, Charles Cooper, argues:

The Supreme Court has held that the only permissible reason for restricting campaign expenditures is to prevent corruption of public officials or the appearance of it. But how can corruption or its appearance arise from political communications by a voluntary membership organization whose communications are paid for by 4.3 million members who make themselves heard by pooling dues and contributions that average $30?

Cooper, using language from the late Justice Thurgood Marshall, writes that the NRA's voice reverberates in Congress because the organization is ``millions of Americans speaking in unison. That `is not a (BEG ITAL)corruption of the democratic political process; it (BEG ITAL)is the democratic political process.'''

BCRA criminalizes the act of corporations, such as the NRA, and unions (but not rich individuals) paying for television or radio broadcast messages (but not newspaper or direct mail or Internet ads--go figure) within the 30- or 60-day blackout periods if the messages refer to a ``clearly identifiable candidate for federal office.'' BCRA's amazingly candid supporters have made it clear that combating corruption was only their rationalization, not their reason for creating this new crime and new class of felons. Their reason was that they dislike the content of the advocacy.

McCain said he wanted to prohibit what he called ``these groups'' from broadcasting advertisements critical of him and his colleagues near elections because ads have ``demeaned and degraded all of us.'' McCain was echoing the member of the 5th Congress who said the Sedition Act was needed to stop ``malicious calumnies against government.''

Defenders of BCRA disingenuously say that it does not preclude pre-election speech by groups like the NRA, it merely requires that such speech be paid for by the groups' political action committees. But Cleta Mitchell, Cooper's co-counsel, notes that the groups' PACs are shackled by many fund-raising restrictions that do not apply to candidates. Thus it is immeasurably more difficult for the groups than for candidates to finance political speech.

Besides, says Mitchell, the pretense that BCRA's restrictions on groups are trivial is patently disingenuous, given the loudly proclaimed intention of BCRA's enactors to silence the groups in the interest of ``healthy political dialogue'' and the happiness of the political class (see above). Those supporters have spoken too clearly for their own good about their determination to restrict speaking by others.

©2002 Washington Post Writers Group
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