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George Will writes a powerful eulogy to the Republican claim on protection for Constitutional originalism in today's Washington Post. Unfortunately, he writes it about four years too late and on the wrong effort and applies it to a too-narrow group -- but at least he's fighting the right fight:
If in November Republicans lose control of the House of Representatives, April 5 should be remembered as the day they demonstrated that they earned defeat. Traducing the Constitution and disgracing conservatism, they used their power for their only remaining purpose -- to cling to power. Their vote to restrict freedom of speech came just as the GOP's conservative base is coming to the conclusion that House Republicans are not worth working for in October or venturing out to vote for in November.
The "problem" Republicans addressed is that in 2004 Democrats were more successful than Republicans in using so-called 527 organizations -- advocacy groups named after the tax code provision governing them. In 2002 Congress passed the McCain-Feingold legislation banning large "soft money" contributions for parties -- money for issue-advocacy and organizational activities, not for candidates. In 2004, to the surprise of no sensible person and most McCain-Feingold supporters, much of the money -- especially huge contributions from rich liberals -- was diverted to 527s. So on April 5, House Republicans, easily jettisoning what little remains of their ballast of belief in freedom and limited government, voted to severely limit the amounts that can be given to 527s. ...
McCain-Feingold restrictions on the amount, timing and content of political speech were ratified by the Supreme Court, which embraces this perverse idea: Because elected officials are experts about politics, they deserve vast deference when they write rules governing speech about, and campaigns against, elected officials. When the court gave its imprimatur to McCain-Feingold's premise -- that big government should have big power to regulate speech about itself -- it guaranteed that what happened April 5 will happen incessantly: The First Amendment is now permanently in play, its protections to be truncated whenever congressional majorities envision short-term partisan advantages.
The Post, exemplifying the media's hostility to speech rights other than their own, eagerly anticipates the next fiddling. As it crouches behind its media exemption from the restrictions it favors for rival sources of political speech, The Post eggs on the speech regulators and hopes for "future legislation" if money diverted from 527s flows, as surely it will, into other political uses. And so the regulatory regime metastasizes, nibbling away at what McCain-Feingold enthusiasts evidently consider the ultimate "loophole" -- the First Amendment.
Will puts the blame on Republicans for attempting to fix a broken system so that it works less badly, and does so unfairly. After the BCRA slapped restrictions on speech and extended our Byzantine system of classifying money in manners that only lawyers could love, Congress left open a large loophole through which cash could pour into supposedly independent organizations with no accountability whatsoever. The legislation had literally handcuffed the candidates and the political parties, who have direct accountability to the voters, and licensed all sorts of mischief for individuals and organizations that never stand for election. In the insane world of the BCRA, or even in a sane world, this loophole had to be plugged, and the latest Congressional effort did that ... at least for this loophole.
However, the main thrust of Will's piece certainly makes sense. Congress would not have had to address 527s at all if it had not egregiously restricted free speech in the first place when it passed the BCRA. In fact, 527s wouldn't even exist if we hadn't passed all sorts of silly categorizations for cash in an attempt to separate political activity from its funding. All the BCRA and the three decades of legislation that came before it have done is to criminalize speech and politics while removing responsible campaigning from elections.
John McCain's infliction of his strained morality has pushed the responsibility for messages and advertisements away from the candidates by cutting off their financing while allowing unfettered contributions to supposedly uncoordinated tax-exempt organizations. People like George Soros and Richard Mellon Scaife can dump millions of dollars into these groups, which then can turn out the most vile and despicable allegations and advertisements -- and none of it (until April 5th) came under campaign-finance control. All this Congress did in restricting 527s is to say that these front groups should be treated like political parties.
The real issue isn't the restrictions placed on the 527 artifacts of the horrendous BCRA. It's the BCRA itself. This Congress and the GOP haven't forfeited their claim to oppose big government because of the increased regulation on 527s; they gave up that claim in the budgeting process over the past three years. The GOP didn't support the BCRA; most of the 40 votes that opposed it when it passed the Senate on March 20, 2002 came from Republicans. In fact, only eleven Republicans voted for the bill:
Only two Democrats voted against it, John Breaux of Louisiana and Ben Nelson of Nebraska. The House voted similarly, with 176 Republicans voting against the BCRA and only 41 supporting it. Democrats, on the other hand, voted to enact the worst First Amendment restrictions since World War I by an overwhelming 198-12 vote.
Let's focus on the real threat to free political speech instead of those rearranging deck chairs on the Titanic. The Democrats gave us this monstrosity, and all the Republicans did was to attempt to make its application more consistent, which probably was a waste of time -- but not the major infringement on speech that Will claims. That came four years ago, and it didn't come courtesy of the Republicans that Will unfortunately targets for his misdirected ire.Sphere It View blog reactions
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