Clamp­ing down on free speech

Austin American-Statesman - - OPINION -

Two splen­did re­cent de­vel­op­ments have high­lighted how cam­paign fi­nance “re­forms” have be­come the dis­ease they pre­tend to cure. In Ari­zona and in Congress, mea­sures os­ten­si­bly aimed at elim­i­nat­ing cor­rup­tion or the “ap­pear­ance” thereof il­lus­trate the cor­rup­tion in­her­ent in in­cum­bentswrit­ing laws that reg­u­late po­lit­i­cal com­pe­ti­tion by ra­tioning po­lit­i­cal speech.

The Supre­meCourt has blocked im­ple­men­ta­tion of Ari­zona’s Clean Elec­tions Act. Un­der it, can­di­dates who ac­cept tax­payer fund­ing of their cam­paigns re­ceive ex­tra in­fu­sions of tax dol­lars to match funds raised by com­peti­tors who choose to rely on vol­un­tary con­tri­bu­tions. The law pun­ishes peo­ple who do not take tax­payer funds.

Its pur­pose, which the Supreme Court has said is un­con­sti­tu­tional, is to re­strict spend­ing — and the dis­sem­i­na­tion of speech that spend­ing en­ables— in or­der to equal­ize can­di­dates’ fi­nan­cial as­sets. This fa­vors in­cum­bents, who have the­myr­iad ad­van­tages of of­fice. And it is patently in­tended to crip­ple can­di­dates funded by vol­un­tary con­tri­bu­tions: Whowants to give to a can­di­date when the do­na­tion will trig­ger a nearly dol­lar-for-dol­lar gift to the can­di­date — or can­di­dates — the con­trib­u­tor op­poses? Just as the newhealth care leg­is­la­tion is a step to­ward elim­i­na­tion, by slow stran­gu­la­tion, of pri­vate health in­surance and es­tab­lish­ment of govern­ment as the “sin­gle payer,” laws like Ari­zona’s are steps to­ward to­tal pub­lic fi­nanc­ing of cam­paigns — govern­ment mo­nop­o­liz­ing fund­ing for cam­paigns that de­ter­mine the con­trol of govern­ment.

In Congress, Democrats have not yet put the fi­nal blem­ishes on their pro­posal for re­strict­ing po­lit­i­cal ad­vo­cacy, the Dis­close Act (a clunky acro­nym—Democ­racy Is Strength­ened byCast­ing Light on Spend­ing in­Elec­tions), but al­ready it is so aw­ful it is ex­cel­lent. Its nakedly par­ti­san pro­vi­sions, and the squalid process of try­ing to ram it into law, il­lu­mi­nate the cor­rup­tion that in­evitably in­fectswhat is sup­posed to be a cru­sade to pu­rify pol­i­tics: When con­sti­tu­tional rights are treated as ne­go­tiable, the ne­go­ti­a­tions cor­rupt the ne­go­tia­tors.

The Na­tional Ri­fle As­so­ci­a­tion be­gan a bizarre bazaar when it told Democrats it would not op­poseDis­close if it ex­empts en­ti­tieswith a cyn­i­cally con­structed set of at­tributes that only the NRA has. When other in­ter­ests howled, Democrats be­gan tweak­ing the bill to en­large el­i­gi­bil­ity for mem­ber­ship in the cat­e­gory of groups that will have broader speech rights than oth­ers do. The NRA’s in­tel­lec­tual lu­di­crous­ness and­moral dis­ar­ma­ment is inar­gu­ing that the Sec­ond Amend­ment’s pro­tec­tion of the right to bear arms is ab­so­lute, but the First Amend­ment’s pro­tec­tion of free speech (“Congress shall­make no law” abridg­ing free­do­mof speech) is for fa­vored groups to ne­go­ti­ate with ... Congress.

The cam­paign-re­form com­mu­nity’s self­in­flicted dis­grace with Dis­close is not just in con­tin­u­ing to treat the First Amend­ment as a turkey to be carved. It also ex­tends the black­out pe­ri­ods in which cer­tain kinds of po­lit­i­cal ad­vo­cacy are banned. The in­creas­ingly opaque ap­pa­ra­tus of po­lit­i­cal speech reg­u­la­tion that Democrats fa­vor is be­gin­ning to re­sem­ble the ro­coco tax code. The con­trast with the First Amend­ment’s limpid sim­plic­ity would cause re­form­ers to blush, if they were ca­pa­ble of em­bar­rass­ment.

For all its faults, some of which the Supreme Court has de­clared un­con­sti­tu­tional, McCain-Fein­gold was at least even­handed: It fa­vored in­cum­bents but did not con­tain pro­vi­sions overtly in­tended to se­cure par­ti­san ad­van­tage. Democrats are rush­ing to en­act Dis­close to con­trol this Novem­ber’s elec­tions and be­fore the Supreme Court can ad­ju­di­cate its du­bi­ous con­sti­tu­tion­al­ity. They are bet­ting that Repub­li­cans will be un­able to get quick in­junc­tive re­lief.

McCain-Fein­gold sup­port­ers could at least claim that they had ev­i­dence of a need. They said their law re­sponded to decades of ex­pe­ri­ence with sup­posed de­fects of the ex­ist­ing sys­tem. Dis­close, how­ever, is a pu­ta­tive cure for a hy­po­thet­i­cal ail­ments. They are those which Democrats as­sert, with­out ev­i­dence, will re­sult fromthe Supreme Court rul­ing that unions and cor­po­ra­tions— in­clud­ing non­profit ad­vo­cacy cor­po­ra­tions, from the NRA to the Sierra Club — have a First Amend­ment right to in­de­pen­dent (not co­or­di­nated with can­di­dates’ cam­paigns) po­lit­i­cal ad­vo­cacy. Dis­close is a com­pen­dium of bur­den­some reg­u­la­tions and man­dates de­signed to largely nul­lify the court’s rul­ing for cor­po­ra­tions. It leaves unions largely free to con­tinue spend­ing on be­half of Democrats.

Be­warewhen the po­lit­i­cal class preens about pro­tect­ing us from“spe­cial in­ter­ests.” The­most pow­er­ful, per­sis­tent and anti-con­sti­tu­tional in­ter­est is the po­lit­i­cal class.

Bradley Smith, for­mer chair­man of the Fed­er­alElec­tionCom­mis­sion, saysDis­close should stand for Demo­cratic In­cum­bents Seek­ing to Con­tain Losses by Out­law­ing Speech in Elec­tions. It is a rea­son for vot­ers to­mul­ti­ply those losses.

Lau­ren Vic­to­ria Burke

In Congress, Democrats are work­ing on the Dis­close Act, which tar­gets po­lit­i­cal ad­vo­cacy.

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