Speak
Easy
by Peter Beinart
Post date 02.21.02 | Issue date 03.04.02
If there's one thing opponents of campaign finance reform hate even more
than losing, it's the perception that they are losing to the forces of
purity and
light. We are fighting for a principle too, they insist: free speech. And,
perhaps betraying a little defensiveness, they often describe the assault
on
that principle in rather grandiose terms. A few years ago Senator Mitch
McConnell, campaign finance reform's opponent-in-chief, called the
McCain-Feingold bill an effort "to repeal the First Amendment, at least
as it
applied to political discourse." Last month House Republican Deputy Whip
Roy Blunt said that had such reforms been proposed "in 1787 in
Philadelphia ... there would have been a second American Revolution."
The aim of such passionate declarations, I suspect, is less to convince
observers that campaign finance reform is wrong than to convince them that
its opponents are motivated by something larger than self-interest. And
it
would be a wonderful thing if campaign finance reform really was a debate
between two groups of politicians, both with the noblest of intentions--one
with a deeper attachment to clean government and one with a deeper
attachment to free speech. Unfortunately, that's not the case.
The first reason to doubt that congressional opponents of campaign finance
reform are motivated by devotion to free speech is that they haven't shown
themselves particularly devoted to it on other issues. McConnell has called
campaign finance reform "the most aggressive attack on free speech since
the Alien and Sedition acts" (there's that hyperbole again), but he backed
the
1995 Communications Decency Act, which banned obscenity on the
Internet (until the Supreme Court struck it down for violating the First
Amendment). McConnell himself introduced the Pornography Victim's
Compensation Act, a Catharine MacKinnon-esque bill that would have
allowed the victims of sex crimes to sue the pornographers who had inspired
their attackers. And he was the prime mover behind a 1999 amendment to
prevent movies and TV shows that display "wanton and gratuitous violence"
from using federal land or equipment.
When confronted with this contradiction, McConnell usually replies that
porn and violent movies don't constitute political speech and, therefore,
don't deserve as much First Amendment protection as do campaign
donations. But McConnell also backed a 1995 effort to restrict the political
activities of groups that receive federal grants. And while McConnell,
to his
credit, opposed a constitutional amendment to outlaw burning the flag,
virtually every other prominent campaign finance reform opponent in
Congress--Trent Lott, Don Nickles, Dick Armey, Tom DeLay--voted to
throw free speech out the window.
The disingenuousness of the free speech argument emerged even more
clearly in this year's campaign finance reform battle. For years the House
Republican leadership had claimed that legislation by Representatives Chris
Shays and Marty Meehan to ban soft money and restrict "issue ads" violated
free speech. But last week, when it became clear this argument wasn't
working--and that the Shays-Meehan bill (the House counterpart to
McCainFeingold) was likely to pass, prominent House Republicans did an
intellectual u-turn and demanded that the bill be defeated because it was
too
weak. DeLay denounced the legislation as "Swiss cheese, it's full of holes."
Which implied that he wanted cheddar--a bill that would more
comprehensively violate free speech. Arizona Republican J.D. Hayworth,
who one year ago warned that Shays-Meehan would "put the Constitution
and the First Amendment into deep freeze," last week attacked the bill
for
not taking effect until after this November's elections. "If it's good
enough to
ban soft money," he bellowed, "why not do it now?" Evidently he didn't
think
Shays and Meehan were putting the Constitution on ice rapidly enough.
But the best reason to doubt the sincerity of the free speech argument
against campaign finance reform is the simplest: It's not correct. It has
been
illegal for corporations to give money to political candidates since 1907
and
for unions to do so since 1947. The "soft money" exception didn't emerge
until 1978--when the Federal Election Commission ruled that corporations
and unions could give directly to political parties if the money was used
for
grassroots activities like registering voters and getting out the vote.
In the last
decade, of course, the parties have driven a truck through that loophole
and
spent vast sums of soft money on behalf of specific candidates--exactly
what
it wasn't supposed to be used for. So if the right to use soft money to
run
ads for or against particular candidates really lies at the heart of the
First
Amendment--as Hayworth, McConnell, and DeLay insist--the First
Amendment has been in deep freeze for most of the last 100 years.
The opponents of Shays-Meehan are even more certain that it violates free
speech in another way: by barring independent groups like the National
Rifle
Association and the Sierra Club from running ads mentioning specific
candidates in the months prior to an election. And perhaps if it really
did,
they'd have a point. But despite their endless assertions to the contrary,
it
doesn't. All the legislation requires is that organizations pay for such
ads with
hard money--that is, through a political action committee (PAC). There
are
no limits to how much a PAC can spend. It can buy all the ads it wants;
it
just can't raise more than $5,000 per person per year--which means that
if
an independent group wants major sway over an election, it needs a wide
base of support. Wealthy individuals can still buy ads mentioning specific
candidates as well. But whereas in the past they could keep their identities
secret--so, for instance, no one knew if they had ties to that candidate's
opponent--under Shays-Meehan they must disclose who they are within 24
hours. More disclosure is what reform opponents usually say they want.
So
why do they think a requirement that individuals buying campaign ads do
so
openly--and that organizations buying campaign ads raise their money in
smaller increments--violates the First Amendment?
In private, congressional Republicans don't bother with all this free speech
talk; they say what Denny Hastert said to a closed-door meeting of House
Republicans on the eve of the campaign finance vote: that without a financial
advantage, Republicans lose. That's not a crazy argument. Democrats, as
the party closer to journalistic and intellectual elites, generally get
a better
shake from the media, especially on cultural issues. Republicans, as the
party
closer to business and the wealthy, surmount that advantage with
money--and the more money that flows into politics, the more they surmount
it. For people who don't equate the good of the GOP with the good of the
nation, that isn't a very compelling argument against campaign finance
reform. But at least it has the benefit of being sincere.
PETER BEINART is the editor of TNR.
Copyright 2002, The New Republic