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Campaign-finance law on fast track to Neverland
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center
04.21.02

There’s a little “Peter Pan” in the nation’s new campaign-finance law.

You may remember the scene in the children’s classic in which Wendy and her brothers are taught to fly. They’re initially skeptical, knowing that the law of gravity will keep them earthbound. But Peter Pan, armed with a little dust from Tinker Bell, had a solution.

“You just think lovely, wonderful thoughts,” Peter explained in J.M. Barrie’s story, “and they lift you up in the air.”

“Lovely, wonderful thoughts” and defiance of laws other than gravity fueled new legislation that purports to clean up politics, but instead short-circuits freedom of speech.

The new McCain-Feingold law is complex and strives to address a variety of ills. Still, the drafters must have had a head full of pixie dust when they wrote a particularly troubling restriction: a ban on broadcast ads by nonprofit groups, unions and corporations for a full 60 days before a general election and 30 days before a primary if the ads refer to a specific candidate.

In a nutshell, the ads say that people who feel strongly about an issue cannot jointly buy an ad on television to share their opinions and to note that one candidate or another better represents their views.

It’s easy to understand why this ban holds some appeal. The U.S. Supreme Court has ruled that campaign contributions can be regulated to prevent corruption. Proponents of this new law argue that issue ads that refer to a candidate in a federal election are often campaign ads in disguise. Supporters believe the 60-day ban prevents advocacy groups from skirting the law.

But at what price? Are we really willing to let our government restrict access to our most powerful communications medium in the days before an election?

In a landmark decision in Buckley v. Valeo, the Supreme Court upheld restrictions on campaign contributions but refused to limit campaign spending. The court found that campaign spending fuels political speech — the kind of speech most protected by the First Amendment. Obviously, the 60-day ban on ads strikes at the heart of political speech.

It’s no surprise that this assault on the First Amendment has been criticized by a wide array of organizations, including the National Rifle Association, the American Civil Liberties Union, the National Right to Life Committee and the Christian Coalition of America. These are groups that have a real stake at getting the issues aired in the final weeks of a campaign.

What is surprising, though, is the extent of support for this bill from the nation’s newspapers.

Those “lovely, wonderful thoughts” and a desperate desire to see campaign-finance reform passed has led many newspaper editorial writers to support this troubling legislation. Would these editorial writers be as supportive if the ban included newspaper ads?

The news media face no limits on their own political commentary. Laudatory editorials are not regarded as campaign contributions, although they obviously are valuable to candidates and may influence an election. It’s just too easy to endorse limits on others’ speech when your own is secure.

Beyond the constitutional concerns, this campaign-finance provision is also a little short on logic. How is it that banning television ads will clean up our campaigns? The same money being spent on television ads can easily be funneled to other media, including billboards, newspapers and magazines.

Many supporters of the new legislation argue that the First Amendment is not being violated because regulating money is not the same as regulating speech. But if you want to really be heard in a society driven by mass media, you can’t make much progress by just standing on a street corner and raising your voice. If you want to get attention on a national scale, you have to spend money on broadcast ads.

No money? No speech.

I respect the need for reform, but taking a shortcut through the Constitution is not an answer. It looks like we’ll have to count on the Supreme Court to deliver that message.

The law of the land, like the law of gravity, can’t simply be ignored. In the end, this brand of campaign-finance reform simply cannot fly.


Related

GOP, state parties join fight against campaign-finance law

Republican National Committee's lawsuit argues soft-money ban unfairly imposes greater restrictions on political parties' speech than that of other groups. 05.08.02

FEC begins work of crafting campaign-finance rules
Commission must spell out exactly what type of political spending new law bans. 05.13.02

Campaign-finance law sponsors to challenge FEC rules
Strategy targeting regulators' plan to enforce soft-money ban comes as Republican Party seeks details on its rivals' fund raising, ads as part of its bid to overturn new law. 06.26.02

Campaign-finance law takes effect
National political parties have until Jan. 1 to get rid of any soft money left in their accounts after election day; meanwhile, Colorado voters approve contribution limits. 11.06.02

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