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July 5, 2007
Campaign Finance and
Free Speech
By
Jack D. McNamara
“This
year (2007) marks the 100th anniversary of the first federal campaign
finance law, the Tillman Act,” writes Bradley A. Smith, a former
chairman of the Federal Election Commission in City Journal
(www.city-journal.org) of 1 July 2007.
Smith writes that the original law banned corporate contributions to
federal campaigns and was named after a singularly colorful South
Carolina Democrat, “Pitchfork Ben” Tillman. Senator Tillman was a
staunch racist who advocated lynching black voters.
At the time of the enactment of the Tillman Act, most of the South was
heavily influenced by the Populist movement whose principal symbol was
William Jennings Bryan. The South detested the “money power” of eastern
corporations, especially the railroads which held southern agriculture
in bondage. It is altogether natural, then, that a South Carolina
senator would want to restrain his enemy’s power to influence elections.
But other political movements were underway in 1907. Notably what
became known as the Progressive Movement was very effectively
initiating such innovations as the popular election of U.S. senators,
the Federal Reserve, the income tax, and the women’s vote. Their most
colorful symbol was Theodore Roosevelt, the scourge of the robber
barons.
The period at the beginning of the 20th century was certainly one of
the most interesting of our history. Besides Democrats and Republicans
we also elected Progressives and Populists. We elected very few
Socialists, Anarchists, and Communists, but they were on ballots in
many places. Eugene Debs, a Socialist, drew more than one million votes
in the presidential election of 1912.
Once the U.S. declared war on Germany in April 1917, the U.S.
Government set about prosecuting and incarcerating Debs — for speaking
against U.S. entry into World War I, a decision upheld by the U.S.
Supreme Court (Debs v. US, 249 U.S. 211 (1919).
The end of June traditionally brings forth a series of the last late
decisions by the U.S. Supreme Court as they finish their term. This
June was no exception.
One of the cases was a free speech decision. The opinion was written by
Chief Justice John Roberts and the decision was a narrow 5-4 victory
for an organization called “Wisconsin Right to Life” over the Federal
Election Commission (FEC).
The Court held that Section 203 of the Bipartisan Campaign Reform Act
of 2002 (BCRA) was unconstitutional as 203 applied to three campaign
ads which WRTL tried to broadcast in 2004. The FEC had used Section 203
of the BCRA in 2004 to prevent the ad’s broadcast. Section 203 blacks
out radio or TV ads which “refer to” a candidate for federal office
within 30 days of a primary or 60 days of a general election. Yes, of
course, that is absurd because “the blackout period silences speech
when it matters most” as conservative columnist George Will wrote in
the Washing Post on June 28, “Setback for the Censors.”
The decision establishes several things rather conclusively. First,
federal election law is so complex that you better not become a
candidate unless you can afford a good lawyer.
Besides that, however, the decision includes a clear signal from the
Chief Justice and the newest arrival on the Court, Justice Samuel
Alito. The signal is libertarian and favors free speech. Citing New
York Times v. Sullivan, “it (the court) must give the benefit of any
doubt to protecting rather than stifling speech.” And “the Court should
give the benefit of the doubt to speech, not censorship.” The Court
overturned its own precedent regarding Section 203, McConnell v.
Federal Election Commission 540 U.S. 93 of December 2003.
This
is a highly technical decision and the rhetoric might have been more
comprehensively used in killing the entire BCRA, as many conservatives
advocate. Justice Scalia concurred in the decision but also rather
scathingly challenged the Chief Justice and Justice Alito to go further.
Justice David Souter wrote a lengthy dissent for the minority. During
oral argument last April, Justice Stephen Breyer told the WRTL
attorney, “If we agree with you in this case, goodbye McCain-Feingold.”
The current Supreme Court is certainly more “conservative” than any in
the last 40 years. But there are signs that “conservative” does not
mean restrictive of First Amendment rights. The exercise of free speech
for political discussion is the clearest and most important of the
entire panoply of rights we enjoy. “FEC v. WRTL” does not degrade those
rights.
That is good news.
The Chief Justice wrote:
Yet,
as is often the case in this Court’s First Amendment opinions, we have
gotten this far in the analysis
without quoting the Amendment itself:
“Congress shall make no law … abridging the freedom of speech.
The
Framers’ actual words put these cases in proper perspective. Our
jurisprudence over the past 216
years has rejected an absolutist
interpretation of those words, but when it comes to drawing difficult
lines
in the area of pure political speech — between what is protected
and what the Government may ban — it
is worth recalling the language we
are applying. . . . . . . the issue we do have to decide —
we give the
benefit of the doubt to speech, not censorship. The First
Amendment’s command that “Congress shall
make no law … abridging the
freedom of speech” demands at least that. •
(Also published by
the Big Bend
Sentinel of Marfa, Texas July 5, 2007.)
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