Silencing Dissent
Tom Daschle should be free to speak his mind without being shouted down. So should FEC commissioners.

By Ramesh Ponnuru
March 11, 2002 5:30 p.m.

he punditocracy appears to have reached a consensus that Trent Lott and Tom DeLay were very wrong to pounce on Tom Daschle over his remarks on the war two weeks ago. Lott attacked Daschle for "criticiz[ing] President Bush. . . when we have troops in the field" and DeLay called his remarks "disgusting." Then the punditocracy pounced on them, saying that 1) Daschle had not in fact criticized the president, 2) Daschle's critics were unfairly questioning his patriotism, and 3) they were trying to use political intimidation to block an open debate on foreign policy. Even quite hawkish commentators — Michael Kelly and the editors of the Weekly Standard, for example — have made some of these claims.

I defended Lott and DeLay on the first two points: In fact, Lott and DeLay had said nothing about Daschle's patriotism; and it was certainly more of a stretch to infer that they had than to infer that Daschle was criticizing the president. The notion that they were trying to shut down an argument, meanwhile, assumes that Daschle had actually made one. I thought his remarks had about one part of substance for every three of weaselly political maneuvering — as John Podhoretz nicely demonstrated — so I wasn't scandalized when Lott and DeLay made an equally political response. But maybe I was wrong to defend them on point 3.

I will, however, repeat one observation: People who say that it's ok for the Democrats to criticize the administration on the war can't then profess shock and outrage when Karl Rove says the war will be a partisan issue in the fall elections.

Silencing Dissent, II
Whether or not Tom Daschle has a legitimate complaint about his critics, Bradley Smith and David Mason are getting rougher treatment for expressing their opinions than he ever did. Smith sits on, and Mason is chairman of, the Federal Election Commission. They were sharply critical of the campaign-finance legislation sponsored by Chris Shays and Marty Meehan (in the House) and John McCain and Russ Feingold (in the Senate). Smith wrote an op-ed for the Wall Street Journal and a cover story for National Review on the legislation as a threat to free speech, and Mason gave a speech to the Heritage Foundation saying it would be unworkable in practice.

The commissioners' critics are saying not only that they were wrong about the legislation, but that they shouldn't have said anything at all. Larry Noble, the executive director of the Center for Responsive Politics, wrote a letter to NR complaining that Smith has "engaged in lobbying members of Congress against pending legislation that he will have to administer if enacted, and has used a magazine article to publicly attack organizations that, no doubt, will continue to appear before his agency." Roll Call quoted Noble, Common Cause lobbyist Matt Keller, and Brennan Center president E. Joshua Rosenkranz calling Smith and Mason's behavior "inappropriate" and "unprecedented." The Hill reports that the commissioners' position has moved McCain to "seek to overhaul or replace" the FEC.

The commissioners' critics talk vaguely of possible illegality on the duo's part. That's a stretch. As long as Mason and Smith didn't use government funds to organize opposition to the bill — and nobody suggests that they did — they didn't break the anti-lobbying law. Nobody blinks when the Justice Department supports, opposes, or even proposes legislation that it will then enforce. True, the FEC is, unlike Justice, an "independent agency," but it's hard to see how that would strengthen the case for a gag rule on the commissioners.

Is there then a rule of political propriety that commissioners shouldn't talk about legislation the way Smith and Mason did? If there is such an unwritten rule, it ought to be abandoned. Few people are better positioned to know if legislation is unworkable than the people charged with enforcing it, and it's useful for Congress to know when considering a bill whether well-informed people think it's unworkable. Everyone knew that Smith and Mason were skeptical of McCain-Feingold-style "reform" when they joined the FEC. Nobody has any more reason to worry about their enforcement of it now that they've spoken than they did beforehand. And nobody's made a case that they have failed to enforce laws simply because they disagreed with them.

The opponents of Shays-Meehan/McCain-Feingold portray its supporters as authoritarian enemies of free speech. You would think that the reform crowd would avoid acting in ways that confirm the charge. Their attempts to silence Mason and Smith may not raise First Amendment issues, but they're certainly thuggish.

The more defensible criticism of Mason and Smith concerns what The Hill calls the FEC's "weak enforcement record in recent years." Peter Beinart takes up this claim in the latest New Republic, saying that Mason and Smith have made a weak agency weaker. The trouble with this argument is that it ignores the FEC's lousy record in court when it was more activist. Says Mason, "I simply won't accept the [contention] that the most aggressive enforcement stance is the wisest enforcment stance. . . . The commission for a long period of time pursued expansive theories of the law and when those theories were challenged, it consistently lost in court."

Now Beinart et al could argue that the courts were wrong, and that the FEC should be pushing the envelope. The reformers then run the risk that by promoting dubious cases, they provoke court rulings that leave the system worse, from their point of view, then when they started. And what about cases where an aggressive FEC would be wrong? In those cases, the FEC would have forced people to undertake prolonged litigation in defense of perfectly legal activity — and the prospect of such litigation would have a "chilling effect," to use the jargon of First Amendment jurisprudence, on other people considering the exercise of their freedoms. But perhaps the campaign-finance reformers do not worry about that.

In any case, one hopes that the folks whose sensibilities were offended by the Republican campaign against Daschle will speak up against the attempt to silence or punish Smith and Mason, who after all have rather less ability to defend themselves than does the senator.