Opening Argument – December 10:A Worrisome Day for the Freedom of Speech

National Journal

The Supreme Court was probably right to uphold the two most publicized provisions of the Bipartisan Campaign Reform Act of 2002. The first bans large, potentially corrupting gifts of soft money to the major political parties at the behest of members of Congress and other federal officials. The second bans any use of business corporation or labor union money to buy broadcast ads naming federal candidates close to the time of a federal election.

But the December 10 decision, McConnell v. FEC, also upheld some less widely advertised provisions of the law (best known as McCain-Feingold), with more-alarming implications for the core First Amendment right to criticize the government and the moderating role of parties in our political system. Among them:

– Nonpartisan advocacy groups, such as the Sierra Club, NARAL Pro-Choice America, the National Rifle Association (as well as business corporations and unions), and the American Civil Liberties Union, would risk criminal prosecution if they placed broadcast ads close to election time criticizing any federal candidate, including President Bush or a member of Congress.

– Any movement to create a new political party — say, one for moderate centrists — would be doomed by a provision making it a federal crime for any individual to give more than $25,000 a year to a party. Ross Perot’s $8 million gift to build the Reform Party in 1996, for example, could land him in prison if repeated now.

– The major political parties will lose money and clout as high-rollers who can no longer give the parties unlimited soft-money donations open their wallets instead to less broad-based, less accountable, more ideologically extreme groups, such as the Bush-bashing America Coming Together and its emerging conservative counterparts. Liberal billionaire George Soros has already given $10 million to ACT.

– McCain-Feingold probably reduces challengers’ already-slim chances of defeating incumbents, whose natural advantages loom larger as party money becomes scarcer. Some of the fine print even "targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents," as Justice Antonin Scalia detailed in one of the four dissents.

– While gigantic media corporations such as NBC (owned by General Electric), ABC (owned by Disney), Fox (controlled by Rupert Murdoch), and The New York Times (controlled by the Sulzberger family) can spend as much as they please promoting their favored candidates, other corporations or labor unions cannot spend a dime.

Those are among the reasons I fear Scalia may prove correct in seeing this as "a sad day for the freedom of speech." I am less alarmed than he is, and would uphold more of the law than he would. But these 278 pages of opinion fill me with foreboding about how much further the five more liberal justices may be prepared to go down the road to censorship. Now including Sandra Day O’Connor, who co-authored the main opinion for the 5-4 majority, the liberals seem all too comfortable replacing the First Amendment’s categorical command that "Congress shall make no law … abridging the freedom of speech" with hundreds of pages of regulations abridging the freedom of speech.

This is not to advocate an absolutist interpretation of the First Amendment. The Court’s seminal decision in Buckley v. Valeo, in 1976, was reasonable to uphold caps on contributions to federal candidates. It held that large contributions buy access to candidates; that access often blends into influence over official decisions; that this creates at least an appearance of corruption; and that the need to prevent that appearance outweighed donors’ free-speech interest in giving unlimited amounts.

McConnell properly extended Buckley by upholding McCain-Feingold’s ban on gifts of soft money by corporations, unions, and wealthy individuals to national political parties. Such large gifts — sometimes earmarked for the candidates who solicit them — can be at least as corrupting as direct contributions to candidates. Former Sen. Alan Simpson, R-Wyo., explained why in a declaration quoted by the Court:

"Who … can seriously contend that a $100,000 donation does not alter the way one thinks about — and quite possibly votes on — an issue? … When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation." The court also stressed that "in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation."

The dissenters argued that the soft-money ban should not apply to minor parties (because they have so little influence to sell) and that the curbs on soft money for state parties are too broad, interfering unnecessarily in their internal workings. The majority responded that a broad ban was necessary to prevent circumvention. Perhaps. But the majority’s readiness to resolve such close calls in favor of curbing speech is not reassuring.

McCain-Feingold’s ban on the buying of "electioneering" ads by business corporations and unions — even if they act independently of any candidate or political party — raises an even closer question. ("Electioneering communications" are defined to include ads that criticize, praise, or otherwise identify any federal candidate and are aired within 60 days before a general election or 30 days before a primary in the candidate’s district or state.)

This ban on independent spending for ads does not really fit the anti-corruption rationale. Nor can it be justified by the Court’s reference to "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form." There is nothing inherently corrosive or distorting about corporate or union money.

But there is something distorting about spending large sums of corporate or union money to support candidates whom stockholders or union members would not choose to support. It’s their money. And there is no First Amendment right to spend someone else’s money on electioneering ads, any more than there’s a right to contribute someone else’s money to federal candidates, which Congress barred corporations from doing in 1907 and unions from doing in 1948.

So the ban on electioneering ads by business corporations and unions may be valid. But the justices were quite wrong to brush aside the powerful arguments by the ACLU, the NRA, and others for striking down this ban, as applied to nonprofit advocacy corporations. Unlike business corporations, these nonprofits exist to promote their members’ political views. They help people of ordinary means pool their resources to participate in the political discourse of the nation by (among other things) buying electioneering ads. Forcing such nonprofits to do any election-related spending through cumbersome political action committees hinders this pooling of resources and thus stifles much political speech.

This was not an unintended consequence. It was one of McCain-Feingold’s central purposes. The nonprofit advocacy groups place many of the "negative attack ads" that especially enrage members of Congress. "This bill … is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves," as Sen. Maria Cantwell, D-Wash., said on the Senate floor.

Try crossing out the phrase "negative ads" in that quote and substituting "free speech" or "criticism of us." Then read it again. Could a more direct attack on the First Amendment be imagined?

We have not seen the last such attack. McCain-Feingold’s champions have long described it as only a modest first step. Looking down the road, Justice Clarence Thomas wondered in dissent what would stop "a future Congress from determining that the press is ‘too influential,’ and that the ‘appearance of corruption’ is significant when media organizations endorse candidates or run ‘slanted’ or ‘biased’ news stories … ?" That may seem politically unrealistic. But Scalia offered another forecast that seems all too plausible:

"The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech…. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert adviser in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come — and always, always, with the objective of reducing the excessive amount of speech."