This time, dammit, we can’t blame John Ashcroft. The latest attack on our civil liberties comes directly from Congress, bolstered by our own Supreme Court, in the form of the McCain-Feingold campaign finance reform law.
The law addresses campaign funding and how those funds are spent. And therefore it addresses our most cherished constitutional amendment, the first one: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …”.
And yet, as a conservative friend of mine [yes, I've got one of those] wrote me today, “Congress can pass a law that prevents us from criticizing them? Where’s the outrage?”
I’ve got your outrage right here, Pumpkin.
Seriously, my friend has a point.
Money and Speech
Some people argue that money isn’t speech. Technically, they’re right. Money is money. However, the reality is that speech costs money. Hell, even my cheesy Web site costs money. And wealthy people have more access to the things money can buy — like newspaper, magazine, and television ads — than people who aren’t wealthy. That’s why people give money to organizations that represent their political views: power in numbers. If I give money to the ACLU, it’s because I want them to pool it with the money from other donors and spend it fighting for the causes I believe in. Sometimes that includes addressing election issues in the media.
Unfortunately, the McCain-Feingold law has created and assigned a new status to certain non-profit organizations, deeming them political committees. Now these organizations, such as the ACLU, NRA, NAACP, and others, will be heavily regulated in election season. They are subject to restrictions on the way that they can spend donations on television ads relating to elections, candidates, and voter issues.
But the law doesn’t restrict the way individuals or media outlets can spend their money on the same things. So, for example, as an election approaches, a corporation could buy a television network and then create and run its own ads supporting this candidate and condemning that one. But within 30 days of a primary or within 60 days of a general election, your favorite non-profit advocacy group can’t buy an ad on that corporation’s network to support its candidate of choice or criticize another candidate unless it creates a new “institutional entity” for that purpose. [More on that in a few moments.]
And your city’s Donald Trump can run television ads ripping your favorite candidate to shreds right up to election day. But your favorite non-profit advocacy group can’t run an counter-ad. So a single media outlet owned by a corporation and one wealthy individual now have more power to campaign for candidates [or issues] than do organizations that represent potentially thousands upon thousands of voters.
That ain’t right.
The Ends and the Means
The law aims to prevent “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” Lofty, noble goals, indeed. And goals that should definitely be addressed.
We can probably all agree that there’s no internal, stealth threat to democracy like a corrupt [or incompetent: FLORIDA 2000, anyone?] election process. Except perhaps selectively outlawing some political speech made by some people under some circumstances. Or by making that speech an administrative nightmare and financial burden to conduct, so that speech is stifled without actually being outlawed.
Remember the poll tax? How about the grandfather clause? Or the voting literacy tests? None of these measures outlawed voting itself. They just created an artificial barrier to entry, making it virtually impossible — not by law, but by barricaded access — for a particular group of people to vote. They were measures meant to ensure victory for certain candidates: they were about power, control, and maintaining the status quo.
The McCain-Feingold law doesn’t quite go that far because it addresses campaign contributions and electioneering communications [a.k.a. advertisements, promotions, etc.], and not voting itself. But still, while its goal might be to curb corruption, its effect will be to silence dissenting voices — often the collective voices of many people — while continuing to give way to individual, powerful voices. This outcome will absolutely corrupt the election process: it will affect which candidates individuals vote for by restricting what they can learn about them, who they can learn it from, and how and when they can learn it.
The law calls for these so-called political committee organizations to create a special offshoot political action committee [PAC] in order to be able to run unrestricted ads before an election. The PAC administrative and reporting requirements impede free speech by adding another layer of cost and complexity, while also obliterating anonymous donations. According to the ACLU:
If a group wanted to take out a broadcast, cable or satellite ad during this period they would have to create a PAC where donors would have to be disclosed to the FEC in a way never before sustained by the courts. The opportunities that donors now have to contribute anonymously (a real concern when a cause is unpopular or divisive — see NAACP v. Alabama) would be eliminated.
The FEC is the Federal Election Committee. It will regulate the PACs and how they spend their money. That includes keeping track of whose money is being spent on what. Maybe I don’t want anyone to know I support certain causes. Knowing that my name will go on record for that cause might actually make me think twice about donating to it. Or it might make me opt out altogether. Any time you take away anonymity, you hinder free speech.
Unprotected or Restricted?
My conservative pal also asked me today, “Diversity and sodomy are constitutionally protected, but not political ads?”
Here, my friend tosses out a bit of a straw-man. Yes, diversity and sodomy are constitutionally protected, and so are political ads. It seems that they’re all protected *under certain circumstances*. Anal sex between consenting adults of the same [or different] sex is protected in the privacy of one’s home, as it should be. It’s not protected in public places, like schools and, much like the Ten Commandments, on the court house steps. So even constitutionally protected actions can have limits.
The same goes for how I spend my money. For instance, I can buy prescription drugs from a pharmacist as long as I have a prescription. But I can go to jail [hi Rush!] for buying prescription drugs from my housekeeper, who is not a licensed pharmacist and who didn’t bother to ask if my prescription had any refills left.
Likewise political ads. They’re still constitutionally protected, but now they’re restricted. So the question isn’t, Why aren’t political ads protected speech? But, Why are political ads restricted speech? Lots of speech is restricted; take a look at the language police at the FCC. That’s bad enough, but political speech — speech critical of the government — needs to be unfettered by that government.
Where Do We Go From Here?
I don’t have a good answer. Can anyone help a sista out? Because to me, it seems like censorship of the worst kind: the outing of donors and the selective restriction of political speech right before an election. Why right before an election? As Massachusetts’ own Marty Meehan said, “because that’s when people are paying attention.”
There’s a proud moment for the voters of my fair state, no?
Truth be told, I’m not sure exactly how best to solve the actual corruption of or the appearance of corruption in our elections. Plus, the law and funding/administrative/reporting requirements are too complex for my mathematically challenged brain. So I don’t have a very good alternate solution to offer. Maybe it should just be like the Wild West at election time. I’m not sure.
But I firmly believe that restricting our most fundamental freedom won’t solve the problem. In my mind, more voices are always better than fewer voices, even if I disagree with them.