RALEIGH — By a narrow margin, the U.S. Supreme Court has upheld the key provisions of last year’s McCain-Feingold bill, in which Congress supposedly cleansed the political process of corrupting contributions and deceptive special-interest advertising. It was one of the most wrongheaded decisions in the recent history of the court, which is saying a lot, eviscerating what was left of the First Amendment’s originally precise protection of political speech.
I’ll leave it to others more expert than I to explain why the decision was so horrendous from the standpoint of constitutional law. Suffice it to say that when gun-rights activists, anti-abortion activists, the ACLU, the Republican Party, the Democratic Party, many prominent constitutional scholars of the Right and Left all advance a similar legal argument about the primacy of freedom — in some cases in direct contradiction to their own, obvious political advantage — it is remarkable and telling. The court, ever willing to assert its authority across a range of issues in which it has no legitimate business, flinched when presented with a textbook case for why judicial review is needed as a critical check and balance in our federal system.
Put more bluntly, the justices chickened out. Perhaps David Souter and John Paul Stevens were lost causes, but you would think that honest liberals professing concern for free speech such as Stephen Breyer and Ruth Baden Ginsburg would have had the gumption to tell the media and the self-appointed mavens of political virtue to mind their own business. Heck, even if Breyer and Ginsburg were just partisan hacks, they should have voted differently given that the political environment created by McCain-Feingold is marginally more congenial to the Republicans than the Democrats. Instead, they teamed up with the proverbial weak reed on the court, Sandra Day O’Connor, to defer to a Congress and White House who obviously — and foolishly — thought they were going to get a free pass by enacting feel-good legislation that the court would then quickly strike down.
Miscalculations, misjudgements, and misbegotten legal rationalizations aside, though, the decision is in some ways not as bad or as momentous as it first appears. First off, it is simply false to say that the court has now upheld the federal government’s ability to eliminate soft money — that is, large and unrestricted gifts of cash — from the political process. The bill doesn’t do that, and I don’t think even the court’s tenuous majority would go along with it. Instead, the rule is that you can no longer give soft money to national political parties or to state parties if its ultimate destination is elsewhere.
Copious amounts of the same kind of money can flow and is already flowing to other political entities. Tens of millions are being scooped up by new Democratic and Republican “527” organizations (so-called because of the section of the tax code authorizing their tax status) that can raise and spend whatever they want from whomever they want, without reporting it, as long as they don’t “coordinate” their messages and get-out-the-vote efforts with candidates or parties. So what? It doesn’t take a rocket scientist (and believe me, the average political operative didn’t even get a preliminary interview with NASA) to figure out which communities or states are in play in the typical political race, which issues to emphasize with which voters, and what is likely to help or hinder a preferred candidate’s campaign.
In short, the soft-money ban is a sham. Worse than that, though, it drives political activity farther away from the public square, from disclosure through documentation and media reports, and thus impoverishes the political discourse regarding who is supporting whom, and why.
Second, the restriction on independent expenditures by interest groups such as the National Right to Life Committee or the Sierra Club is also a bit less than meets the eye. The rule isn’t that they cannot run any ads in the homestretch of a campaign. The rule requires that if their ads mention the name of a candidate in a race, sponsors must comply with limits and disclosures as if they were something akin to a campaign. This is an impediment but not an insurmountable wall to continued citizen action in politics. The National Rifle Association is already figuring out the precise language it will use in its 2004 ads — which will probably criticize actions of Congress and then provide a web site where viewers can find out how their local member voted — while other groups are preparing to run a short, heavy burst of old-style ads just before the deadline. Perhaps others will decide to set up separate efforts to run such ads and comply with the new law.
With these points in mind, consider now how the court’s decision is far worse than has initially been reported. For one thing, justices have now codified a new interpretation of the First Amendment that bestows greater freedom of speech on “media” corporations than is enjoyed by other corporations. The bill grants an exception to the message restrictions for broadcasters and publishers. Until now, contrary to what some journalists have fervently believed, the constitution did not grant “members of the press” any special right against government encroachment. It protected “freedom of the press,” meaning the freedom to print, distribute, or disseminate whatever you want to a willing public no matter how critical your message was of the government. This right was enjoyed by newspapers and broadcasters, yes, but also by any other group of citizens who wanted to express themselves collectively.
No longer. Now the federal law and judiciary respects a different set of free-speech rights for some companies than for the rest. Guess what? This isn’t just unfair to American businesses and unions. It creates a dangerous situation for the news media. Inevitably, as groups like the NRA and the Sierra Club seek to game this provision, too, by purchasing a radio station here or expanding a preexisting membership magazine there to qualify as “media,” government regulators will begin to try to decide which organization is really in “the media” and which is not. How is this different, in any material sense, from a system of licensing news organizations? In the wrong hands, this precedent could mutate into a monstrosity.
More generally, the bill and the court’s decision are worse than you might think because they serve to weaken the force of the constitution itself. The value of having a written set of rules underlying our government, rules than cannot easily be rewritten by even a majority of citizens, is lost when unelected judges can rewrite constitutional provisions unilaterally or elevate principles not in the constitution to such a status that they trump what is actually in the document.
That’s what this decision does. It suggests that a governmental interest in heading off corruption or just the appearance of corruption is enough to justify stripping free individuals of their First Amendment rights. I see nothing in the constitution that would justify such a usurpation. If it’s possible here, what is imaginable tomorrow? What other fundamental rights must we surrender to the passing fancies of the intelligentsia or the anxious misperceptions of hand-wringing worryworts?
As you can see, I have a strong opinion on this. I hope that’s still permitted, your Honors.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.