In the Supreme Court's allegedly purifying 5-to-4 decision in McConnell v. Federal Election Commission, political campaign financing dissenter Justice Antonin Scalia said the new statute "cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government." Off the court, also dissenting, Anthony Romero, executive director of the American Civil Liberties Union (ACLU), noted: "The decision will do far more to restrict political speech than to curtail the influence of money on politics."
One part of this so-called "reform" legislation greatly reduces the First Amendment rights of millions of Americans who want to express their views during the crucial period of national election campaigns through organizations that produce issue ads. But the new law does not limit the previous right of prodigiously wealthy Americans — for example, George Soros or Bill Gates — to spend as much of their own money, without contributing to a political party or a candidate, on election advertisements as they like.
Most of us who are not that rich recognize that we have to amplify our views as a collective to get them heard. So, we join the National Rifle Association, the ACLU or other organizations. As our surrogates, they pay for "issue ads" that are obviously most effective when broadcast on radio and television close to the date of a primary or general election.
But the new "reform" law forbids such "electioneering communications" on television or radio that refer to specific candidates for federal office within 30 days before a primary or 60 days before a general election.
The ACLU or National Right to Life Committee would violate that law by citing, in an ad, the name of the candidate they oppose or support — or even by referring to that candidate in some way that appears to directly urge a vote for or against.
As Justice Anthony Kennedy, who also dissented, wrote, the Bipartisan Campaign Reform Act "makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests."
Last spring, at a conference of journalists that I attended in Boston, U.S. Rep. Martin Meehan, D-Mass., a fervent supporter of what was called the McCain-Feingold bill during its gestation, was asked about these specific time frames of 30 and 60 days. "Why," he said, "that's when people are most interested in elections!"
Of course. The core of the First Amendment is our right to say what we think about the candidates when voters are likely to be most influenced.
And if we're not George Soros, Bill Gates or some other wealthy person, we also exercise our First Amendment right — as the Supreme Court decided in the Roberts vs. United States Jaycees (1984) free-speech case — by associating with others "in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." And, as Justice Scalia noted — quoting the Supreme Court in the free-speech caseof NAACP vs. Button (1963): "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association."
So, where in the Constitution do Justice Sandra Day O'Connor and her colleagues in the majority find greater First Amendment advocacy rights, as an election nears, for millionaires and billionaires than for the rest of us? Should class matter when it comes to the First Amendment?
In and out of Congress, critics of the issue ads have accused them of being "attack ads." But as Justice Scalia writes, such ads represent "the most passionately held social and political views," and "it is not the proper role of those who govern us to decide which campaign speech has 'substance' and 'depth.'" Nor is it the role of the Supreme Court to curtail the impact of passionate ads.
Many members of Congress, as Justice Scalia cites, are the fiercest critics of issue ads because these viewpoints can indeed be effective. In cordoning off First Amendment speech, passionate or restrained, near an election, the Supreme Court, however unintentionally, protects incumbents — adding to their security in office through redistricting.
The independent advocacy organizations, however, could run ads within 30 or 60 days before an election if they paid for them through PACs (political action committees). But then they would be required to name their contributors giving $1,000 or more. Yet, as Justice Clarence Thomas emphasized, in dissent, the First Amendment right to anonymous speech has been honored, including by the Supreme Court, throughout our history.
Should the government have the power to collect the names and addresses of each contributor or member of these groups? Should the members' employers know through the public record if they disagree with their employees' views?
In summarizing the impact of this campaign "reform" decision, a letter writer to The New York Times, Edward Wronk, recently got it right: "The powerful have only gotten more powerful."
Why did George W. Bush, who opposed this law, refuse to veto it? Was this a principled decision?
Published with the permission of Nat Hentoff. Originally posted on The Washington Times Web site on Dec. 22. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.