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First Amendment issues peppered Edwards' Senate career

By Tony Mauro
First Amendment Center legal correspondent
07.11.07

One in a series of articles on the First Amendment record and views of 2008 presidential candidates.

When he was 11, presidential candidate John Edwards wrote an essay titled, “Why I Want To Be A Lawyer.”

The key reason he gave, Edwards recalled in a 2004 book, was that “I would like to protect innocent people from blind justice the best I can.”

To an 11-year-old, blind justice sounded bad, not good, but the goal was clear. And it animated Edwards’ legal career, pushing him in the direction of personal-injury law, seeking recompense for those injured by corporate or medical wrongdoing.

As a result, First Amendment law was not a major feature of his legal practice. But when he was in the Senate from 1999 to 2005, he was called on to take stands on several free-speech and religious-freedom issues.

His most prominent First Amendment stance in the Senate was in favor of the McCain-Feingold campaign-finance legislation in 2001. When it was signed into law as the Bipartisan Campaign Reform Act, it became the target of several challenges — largely unsuccessful — on First Amendment grounds.

On April 2, 2001, lead co-sponsor Sen. Russ Feingold, D-Wis., said on the floor of the Senate that Edwards was a “terrific asset” in advancing the bill toward passage.

During the debate over the law, Edwards made several speeches asserting that the law was constitutional under the framework of the Supreme Court’s 1976 decision in Buckley v. Valeo. In the context of earlier campaign-finance legislation, that decision upheld limits on contributions to campaigns but not on spending by candidates.

“There has been some suggestion during the course of this debate that there is a serious question about constitutionality,” Edwards said in March 2001 on the Senate floor. “In fact, there is no serious question about that.”

All that is needed under Buckley to justify limits on soft money in campaigns, Edwards said, was a showing of a compelling state interest. Then and now, Edwards said, the state interest was in preventing the appearance of impropriety that accompanies raising large amounts of money for campaigns. Edwards spoke of “the need to return this democracy to the voters and to remove the influence of big money or the appearance of influence of big money.”

Edwards also made a spirited defense of the part of the law that restricts campaign advertising in the months before primary and general elections. During pre-election time periods, electioneering ads paid for by direct treasury funds of unions and corporations are banned.

Six years later, the Supreme Court struck down that provision as a First Amendment violation. In Federal Election Commission v. Wisconsin Right to Life, decided June 25, 2007, the Court said, in the words of Chief Justice John Roberts Jr., “Enough is enough.” He said the Wisconsin group’s ads were clearly a form of political speech deserving First Amendment protection. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” wrote Roberts. The Court’s liberal minority would have upheld the ban on such ads.

In a statement released two days later attacking the Supreme Court for several of its rulings, Edwards said that in the campaign-finance decision, the high court “dramatically restricted Congress’ power to keep corporate money out of political campaigns.”

Back when the law was passed, Edwards had no doubts about its constitutionality. Again citing Buckley, Edwards said the provision met the Court’s requirement that the law must advance a compelling interest and must be clear, narrowly tailored and not overbroad.

“The Court, in reaching that conclusion (in Buckley,), first recognized that the First Amendment in the case of electioneering — which is what we are talking about, campaign ads — is not absolute,” Edwards said. “There are certain circumstances where First Amendment rights can be restricted, but only if these tests are met.”

On church-state issues, Edwards gave probably his fullest description of his views in a recent interview on beliefnet.com.

Without hesitation, Edwards said his Christian faith would influence his decision-making as president. “I do believe in the separation of church and state. But I don’t think separation of church and state means you have to be free from your faith,” Edwards said. “My faith informs everything I think and do. It’s part of my value system. ... I would not, under any circumstances, try to impose my personal faith and belief on the rest of the country. I don’t think that’s right. I don’t think that’s appropriate. But freedom of religion doesn’t mean freedom from religion. And I think that anything we can do to promote the idea that people should express their faith is a good thing.”

On the question of prayer in public schools, Edwards said, “What I’m not in favor of is for a teacher to go to the front of the classroom and lead the class in prayer. Because I think that by definition means that that teacher’s faith is being imposed on children who will almost certainly come from different faith beliefs. Allowing time for children to pray for themselves, to themselves, I think is not only okay, I think it’s a good thing.”

Asked what he thought about displaying the Ten Commandments in courthouses, Edwards said it probably “causes more trouble than good.” He added, “How would Muslims feel if they went into that courthouse, and how would people of other faiths feel … if they were in the same circumstance?”

He said an Edwards presidency would see faith-based groups as a way to deliver needed social services, but cautioned that church-state issues make it a “tricky business.” Edwards said he would not favor giving federal funds to faith-based groups that discriminated, and he would want auditing and accountability for the use of the funds that might make religious groups uncomfortable. “But, the bottom line is, if you can work through these problems, I think there is a great potential delivery system there.”

Edwards has also opposed school-voucher programs that provide aid to religious schools.

On other First Amendment issues during his term in the Senate and since, Edwards has staked out these positions:

  • Against a proposed constitutional amendment that would have enabled Congress to pass laws banning flag desecration. “I believe flag-burning is a despicable act, but I do not support a constitutional amendment to prohibit flag-burning,” Edwards said in 2004.

  • In favor of a 2002 resolution voicing disapproval of a ruling by the 9th U.S. Circuit Court of Appeals that would have removed the words “under God” from the Pledge of Allegiance. Along with 98 other senators, Edwards said the Senate should join the case to defend the constitutionality of the words “under God.”

  • In support of allowing broadcast of federal court proceedings. He co-sponsored a bill in 2001 that would allow camera access, but it was not acted on.

  • Against closing portions of the 1999 Senate impeachment trial of President Bill Clinton to the public.

    In October 2007, the Associated Press reported that a University of North Carolina journalism professor had accused Edwards' campaign of demanding that the professor pull a student reporter's television story about the national campaign headquarters' upscale location in Chapel Hill.

    C.A. "Charlie" Tuggle, an associate broadcast professor, said the Edwards campaign contacted the reporter, second-year master's degree student Carla Babb, asking that a video of her report be removed from the Internet. When that failed, the campaign demanded in three calls to Tuggle that the TV story be killed, he said.

    The campaign had said the reporter misrepresented the story she planned to do, Tuggle said.

    "Was it what the campaign was expecting it to be? No," Tuggle said. "But I don't know that we're obligated as journalists to tell that the focus of a story has changed."

    The Edwards campaign had no comment on the professor's specific contentions. More generally, spokeswoman Colleen Murray said: "This is silly. We love all reporters, the problem is the feeling isn't always mutual."

    Intern Melanie Bengtson contributed research for this report.


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