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Beinart in a
TRB column in The New Republic last week argued that
Republican criticisms of campaign-finance reform on free-speech
grounds are insincere, and more importantly, incorrect.
Beinart is
always smart and scores some nice gotcha points against congressional
GOPers, but when it comes to his essential contention — that
campaign-finance reform is constitutional — he is uncharacteristically
sloppy.
He points out
that issue ads 60 days before an election aren't actually, as sometimes
claimed, banned by the bill. Instead, the bill just says that such
ads must be funded with "hard money," in other words through
a PAC.
What, Beinart
asks, could possibly be unconstitutional about that?
The answer
is lots.
To understand
why, it is important first to remember the motive of the campaign-finance
reformers here. It is to make for less political advertising.
John McCain and Chris Shays are very open about this.
In other words,
they want to suppress a certain kind of political speech (in this
case, advertising funded with "soft money"). Which brings
us, obviously, to the constitutional problem.
In Buckley
v. Valeo, the Supreme Court held essentially that only direct
contributions to politicians could be regulated, because they have
a unique possibility of being corrupting.
Otherwise,
you can't regulate any person, any corporation, any lobbying group
for trying to say things about political issues, and about —
since they are intimately linked to political issues — actual
living, breathing politicians.
As Ramesh
Ponnuru reminded us yesterday, in arguments about the Constitution
it's not enough just to cite Supreme Court precedents, they have
to make some sense.
This one clearly
does. What else is the First Amendment for if not to protect people's
right to attack or support politicians?
The 60-day
restriction would hamper this right, by limiting permitted advertising
to one specific sort of political organization, PACs (what now makes
PACs so wonderful when they used to be one of the targets of reformers
is a mystery).
Advocacy groups
like the ACLU would either be forced to form PACs or simply forgo
ads in these periods.
Boutique groups
formed just to lobby on one particular issue, like the Children's
Protection Fund formed in 1996 to overturn Clinton's partial-birth-abortion
veto, would be out of luck altogether.
Meanwhile,
groups that do have PACs available to them would still be operating
in a much more restrictive world.
There is, among
other regulations, a $5,000 limit on contributions to PACs. A lot
of the fundraising would be done by direct mail, the least efficient
and most costly way of raising cash.
In short, money
for political advertising would be harder to get and in shorter
supply (again, reformers make no effort to disguise the fact that
this is what they want).
In a decision
reaffirming Buckley, the court addressed exactly this issue
in Massachusetts Citizens for Life v. FEC.
The court held
that the Massachusetts pro-life group could not be forced to fund
its advertising with a PAC, because PAC rules are so restrictive.
Think of an
analogy: What if Congress issued a rule that regulated political
journalists' speech about politicians 60 days before an election?
What if the rule said that journalists could only use three-syllable
words in political articles in that 60-day period?
Beinart's argument
might be that it's no problem because such speech is not banned
outright, it is only regulated.
But the court
obviously would toss such a rule out. And the fact is that journalists
don't have more free-speech rights than ordinary citizens who come
together to form grassroots lobbying groups (sorry Peter!).
So, the 60-day
provision in Shays-Meehan should certainly be ruled unconstitutional
(whether it will or not is another question, since there's no accounting
for Sandra Day O'Connor's tastes on any given day).
On a related
issue, Beinart also asks how preserving "soft money" can
suddenly be so important to free speech if direct corporate contributions
to politicians have been banned since 1907.
The answer
is that "soft money" is not direct corporate contributions
to politicians.
People often
talk of the "soft money" exception. The better way to
think about it is the "hard money" exception.
The courts
have essentially made an exception for direct contributions to politicians,
and said they — and only they — can be limited and regulated
because they create the clearest appearance of corruption.
Everything
else is to be left unencumbered by government regulation. The same
way I can turn on my computer whenever I want and write about whatever
I want, Citizens Against Hastert should be able to advertise about
anything they want, whenever they want.
It's called
freedom. Liberals appreciate it in other areas, why not when it
comes to political speech?
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