STEAL A MARCH:

So Much for Free Speech (Robert J. Samuelson, August 25, 2004, Washington Post)

The presidential campaign has confirmed that, under the guise of "campaign finance reform," Congress and the Supreme Court have repealed large parts of the First Amendment. They have simply discarded what were once considered constitutional rights of free speech and political association. It is not that these rights have vanished. But they are no longer constitutional guarantees. They're governed by limits and qualifications imposed by Congress, the courts, state legislatures, regulatory agencies -- and lawyers' interpretations of all of the above.

We have entered an era of constitutional censorship. Hardly anyone wants to admit this -- the legalized demolition of the First Amendment would seem shocking -- and so hardly anyone does. The evidence, though, abounds. The latest is the controversy over the anti-Kerry ads by Swift Boat Veterans for Truth and parallel anti-Bush ads by Democratic "527" groups such as MoveOn.org. Let's assume (for argument's sake) that everything in these ads is untrue. Still, the United States' political tradition is that voters judge the truthfulness and relevance of campaign arguments. We haven't wanted our political speech filtered.

Now there's another possibility. The government may screen what voters see and hear. The Kerry campaign has asked the Federal Election Commission (FEC) to ban the Swift Boat ads; the Bush campaign similarly wants the FEC to suppress the pro-Democrat 527 groups. We've arrived at this juncture because it's logically impossible both to honor the First Amendment and to regulate campaign finance effectively. We can do one or the other -- but not both. Unfortunately, Congress and the Supreme Court won't admit the choice. The result is the worst of both worlds. We gut the First Amendment and don't effectively regulate campaign finance.

The First Amendment says that Congress "shall make no law . . . abridging the freedom of speech, or . . . the right of the people peaceably to assemble, and to petition the Government" (that's "political association''). The campaign finance laws, the latest being McCain-Feingold, blatantly violate these prohibitions.

Campaign Cops and Car Ads (George F. Will, August 22, 2004, Washington Post)

Russ Darrow -- "The Right Russ," his bumper stickers say -- is running in the Sept. 14 primary for the Republican nomination for the U.S. Senate seat held by Russ Feingold (D-Wis.). Feingold is a saint in the church of campaign finance reform because of the McCain-Feingold legislation enacted in 2002 to solve the supposed problem of "too much money in politics."

In 1965 Darrow founded a business -- Russ Darrow Group Inc. -- that now includes 22 dealerships selling new and used vehicles. It is operated today by Russ Darrow III. It runs broadcast, print and electronic (e-mail and other) advertising using the now valuable brand name "Russ Darrow."

McCain-Feingold's blackout provision says that 30 days before a primary, it is illegal for corporations -- a category that includes thousands of advocacy groups from Planned Parenthood to the National Rifle Association -- to finance any "electioneering communication" via radio or television that "refers to" a congressional candidate and is "targeted to the relevant electorate."

Because of that law, the company felt compelled to ask the Federal Election Commission whether it can continue to advertise when its founder is running for federal office. Common sense says the law was not intended to pertain to, and its language cannot be tortured to extend to, commercial advertising. But Common Cause thinks otherwise.

Clearly, car ads are not "electioneering communications." Hence mentioning Darrow's name as a brand name in a communication with no relevance to any election cannot consti- tute making a reference to a political candidate.

Nevertheless, Jay Heck, director of the Wisconsin operations of Common Cause, the national advocacy organization for enlarged government regulation of political advocacy, says: "Why should [Darrow] have an unfair advantage and be able to pay to have his name out there with corporate money, where his opponents have to use regulated, disclosed money?"

It is breathtaking. It is a measure of how many forms of speech have been made problematic by the campaign reformers' itch to extend government supervision of speech.

It would be a great time for the President to make a major campaign finance reform speech, putting down a marker so that he and the wider Republican majorities in Congress can revisit the law first thing in 2005 and make it consistent with the First Amendment.

Posted by Orrin Judd at August 25, 2004 1:17 PM