Politics & Policy

Blacking Out Speech

McCain-Feingold's assault on freedom.

In the election of 1800, Thomas Jefferson became president and swept his party into power due, in part, to the country’s overwhelming opposition to the Sedition Act of 1798. This act was a deliberate attempt by the Federalists in power to silence their political opponents.

#ad#The McCain-Feingold campaign-finance law enacted in 2002 is an equally dangerous modern-day assault on the First Amendment. It could more accurately be called the McCain-Feingold censorship law because it stifles political speech, protects incumbent politicians and consolidates power in Washington. This law is of the Congress, by the Congress, and for the Congress, because it protects members of Congress by silencing opposing points of view.

McCain-Feingold explicitly rejects James Madison’s warning in Federalist 10 that the destruction of liberty in pursuit of “curing the mischief of factions” is worse than the disease itself.

Madison and Thomas Jefferson were very sensitive to limitations on free speech because they lived through the Federalist efforts to criminalize political speech that was critical of the government. In response to the Sedition Act, Madison helped author the Virginia legislature’s resolution that declared the act unconstitutional and stated that the law “ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

Jefferson helped write Kentucky’s resolution, which called the Sedition Act a momentous regulation that wounds “the best rights of the citizen” and stated that “it would consider a silent acquiescence [to it] as highly criminal.”

Today we are seeing the most systematic effort to censor and repress political speech by those in power since the Federalist overreach of the 18th century.

This is no exaggeration. The ongoing litigation between Wisconsin Right to Life (WRTL) and the Federal Election Commission (FEC) is a clear example of this.

WRTL attempted to air several issue ads in Wisconsin in the summer of 2004 calling on citizens to urge both of Wisconsin’s U.S. Senators to oppose the filibustering of federal judicial appointments. McCain-Feingold however, which Wisconsin Senator Feingold cosponsored, contains a free speech “blackout period” before elections in which radio and television ads mentioning a candidate are deemed “electioneering communications” and are thus illegal. Therefore, since Senator Feingold was up for reelection in 60 days, this Wisconsin grassroots organization could not exercise their First Amendment rights and hold their elected representative accountable.

In Maine, we are now seeing the same thing happen again. The Christian Civic League of Maine (CCL) wants to broadcast a grassroots lobbying advertisement calling on Maine’s senators–by name–to support the federal Marriage Protection Amendment before the Senate votes on it next week. The FEC objected and argued in federal district court that the Maine Christian Civic League can’t use the Senators names in the ad because it would fall within the McCain-Feingold free speech blackout period before Maine’s June 13 primary election. The FEC won and this case is now on appeal to the Supreme Court, although with each passing day CCL is prohibited from running its grassroots advocacy ad.

This is horribly wrong. What would the Founding Fathers have thought of such free speech “blackout periods”? The days leading up to an election ought to be filled with debate. Free speech and activism, by informing and organizing the public, empower average citizens to promote a cause they believe in and to demand honest and responsive representation. Instead, the incumbent politicians that supported McCain-Feingold prefer to keep us quiet and prevent us from making noise about their records as Election Day gets closer.

A great travesty of the law is that it makes it harder for candidates of middle-class means to run for office at all. Instead, we have the example of how one candidate spent $100 million personally to buy a Senate seat, then a governorship, but while in the Senate voted for McCain-Feingold to limit every middle-class citizen to $2,500 in donations per election campaign. These rules move us dangerously closer to a plutocracy where the highest bidder can buy a seat.

In 1994, the Contract with America was a commitment to restore the bond of trust between individuals and their elected officials, putting the interests of the American people above all else. By limiting the ability of individuals or a collective group of individuals to participate and voice their opinion Congress is breaking this bond.

We must repeal McCain-Feingold as the necessary first step towards reaffirming a bond of trust between the American people and their elected representatives.

A truly functioning campaign system would take power out of Washington and return it to its owners–the American people. Such a system would allow individuals to make unlimited contributions to candidates for Congress in their district, so long as it is reported immediately on the Internet and is transparent and accessible.

Once the American people come to understand the nature of McCain-Feingold’s assault on liberty, there is no doubt that the final outcome will be the same today as it was for the Sedition Act: repeal. Those skeptical of seeking this reform should consider the words of Ronald Reagan: “If you’re afraid of the future, then get out of the way, stand aside. The people of this country are ready to move again.”

–Former House Speaker Newt Gingrich is a senior fellow at the American Enterprise Institute and author of Winning the Future: A 21st Century Contract with America.


NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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