Can We Endure Free Speech?

George Will lends his considerable talent for derision to the effort to “reform” political speech, which met its latest setback in federal court two weeks ago. He notes that the effort to reform political speech has finally received recognition — albeit small — that it tends to violate the First Amendment:

A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2 to 1, the court held — unremarkably, you might think — that issue advocacy ads can run during an election campaign, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance “reformers”) as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the American Civil Liberties Union and the National Rifle Association.
And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the amendment, one more time). In 2004 Wisconsin Right to Life was distressed because Wisconsin’s senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush’s judicial nominees. It wanted to run ads urging people to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.”
But Feingold was running for reelection, and the McCain-Feingold “reform” makes it a crime for entities such as Wisconsin Right to Life to use their corporate funds to broadcast an “electioneering communication” within 30 days of a primary or 60 days of a general election. An “electioneering communication” is one that “refers to” a candidate for federal office.

As Will notes, this reversal runs more tepid than hot, as it hinges more on technical applications of the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold. It also produced a split decision. The dissenting jurist in this case wanted to establish a series of tests for political speech that should shock Americans; he wanted to allow evaluation of ads for intent and context, both of which would open the door to inspection of e-mails and other private correspondence before an ad could find approval to air.
Imagine, if you will, the Founding Fathers who wrote and established this amendment. The young Republic had failed in its first incarnation under the Articles of Confederation and had just created a Constitution that gave far greater powers to the federal government. The Bill of Rights came in reaction to that increase in power, and first and foremost came the protection for speech and religion in order to counter the power of federal officials. Do you suppose for a moment that they intended the federal government to act as an approving agent for political speech — or do you think they intended free speech to check federal power?
The fact that a sitting jurist could calculate such a reversal of the intent and meaning of the First Amendment should shake Americans to their core, if we hadn’t already been inured to the sight of judges arrogating powers to themselves and the bureaucracy. However, it does point out the erosive effect of the BCRA and how the “reformers” would eventually send us into an autocracy where the very act of writing this blog could be construed as illegal.
The zeal of reformers has proven uniquely dangerous throughout history. All one has to do is turn the pages through the various reform movements to see the abuses that inevitably come. Think Robespierre in the French Revolution, or Oliver Cromwell in England. Consider our own Prohibition, which had a fatally flawed concept of reform from the beginning. Free political speech does not require reform, and it is not incumbent on the citizenry of the United States to bind its freedoms simply because some politicians engage in corruption.
The only problem with campaign finances is a lack of disclosure. We have to eliminate the false categories of money by removing the limits of contributions and the dodges that have to be created to accommodate them. Make politicians for federal office declare all campaign contributions electronically within 72 hours, and force the parties to do the same for soft money. Eliminate the tax-exempt status of the 527s and they will disappear, which will allow the monies to flow to the candidates and the parties, for which they will bear the responsibility and accountability.