Politics & Policy

In Praise of Negative Liberty

The enforcement genie is coming out of its bottle.

Recent developments bear out one of the few certain propositions in politics: The only true campaign-finance reform requires protection for so-called “negative liberty.”

Take the dynamic set in motion by the recent Kelo decision. Originally, contests among development interests were largely a private concern. You want a bit of land? Offer to buy, and if that offer is rejected, sweeten the deal for the seller. Now, with the Supreme Court’s endorsement, local governments can play middleman in transferring property from one private interest to another. So you’re the interested developer–do you sweeten the deal with the local officials? You may want to, but what would be an acceptable practice in a private deal is something very different–bribery–when the person of interest is a bureaucrat.

Yet, inevitably the pressure is there when government becomes a participant in the private business relations of a community. Perhaps rather than pay a bribe, the interested developer (and his competitors) become active campaign contributors. Or host swanky conferences. Or set up a friendly voter-registration project. The negative liberty secured by the takings clause and the Constitution’s respect for private property kept the government out of private land deals. Eroding that protection increases the pressure to seek influence from decision-makers, and for those who cross the line, corruption. The inevitable scandal then provides an impetus for yet more regulations. The process is a one-way ratchet.

Another arena in which the assault on “negative liberty” could harm democracy is in Internet journalism. The FEC is holding hearings to consider to what extent journalism on the Internet should be protected from regulation like conventional broadcast or print journalism. Originally, we all knew that the First Amendment protected speech and the press from regulation. That was in a day when participating in the press was a low-dollar proposition–kind of like today on the Internet. Yet we see intelligent people debating whether campaign-finance restrictions should be placed on political bloggers. Else, fear the regulators, anyone who wants to influence a campaign could spend what they want over the Internet.

To which we should respond: Yes, exactly. If the liberty of the press means anything, it means that individuals, groups, and entities should be able to publish their opinions. One of the beautiful things about Internet communications is that they are not invasive. Unlike broadcast agitprop, the reader needs to seek out the commentary to be exposed to it.

Yet what may occur is that the Commission enacts some regulations aimed at paid Internet advertising and political spam, clarifies or confuses the rules related to press and volunteer activity, and applies case-by-case decision-making at the margins. That may look mild, but the enforcement genie will be out of the bottle. It will be clear to political players that Internet political speech is not insulated from regulation, and the fur will fly. The government will have the power pick and choose who is protected, so where before adversaries would have to be content debating each other, they will now trade FEC complaints.

“Negative liberty” gets a bad rap. People like, say, Supreme Court Justice Stephen Breyer discard it as archaic in favor of managing “active liberty” through constitutional adjudication. But look what this progressive faith in management of public life gets us–a system in which city-hall insiders can grab land from unwilling sellers, and the establishment media can shut down inconvenient upstart bloggers.

Over the next several months, the FEC will wrestle with how it should regulate political messages on the Internet. It is not enough to castigate the Commission, or the Congress that enacted the laws it administers. At what point will people become convinced that protections against government regulation of property and speech must be restored, and that “negative liberty” is the best thing going?

Allison Hayward is a Washington, D.C., attorney and writer. She is the Skeptic at www.skepticseye.com.

Allison R. Hayward — Nina Owcharenko is a senior policy analyst for health care at the Heritage Foundation's Center for Health Policy Studies.


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