Testifying at a House hearing about the campaign finance reform bill narrowly approved by the Senate in April, American Civil Liberties Union president Nadine Strossen blasted the proposal as no less than “a recipe for political repression.”

Strossen was one of a number of people from across the political spectrum to testify against the bill, which the House will consider beginning in early July.

Strossen told the hearing that, “This legislation is going to completely obliterate effective issue advocacy. What this legislation does is make it a crime for citizens’ groups to criticize government.”

Source:

Legal experts rip U.S. Campaign Finance Bill. John Whitesides, Reuters, June 12, 2001.

Near the end of the 2000 political season, the National Association for the Advancement of Colored People ran a controversial advertisement implying that George W. Bush was responsible for the murder of James Byrd. The ads features Byrd’s daughter, Renee Mullins, doing a voice over saying that after seeing Bush oppose hate crime laws, “It was like my father was killed all over again.”

Conservatives were outraged by the ad, they need not worry much longer, because ultra-liberal Democratic Sen. Paul Wellstone (Minnesota) has a solution — he wants to make that ad illegal.

The NAACP, like many such organizations, is incorporated as a nonprofit under IRS rules that forbid it from doing partisan political advocacy; if the NAACP itself had aired the ad, its tax exempt status could be jeopardized. To get around this limitation the NAACP exploited a “loophole” and created The NAACP Voter Fund. The Voter Fund is incorporated as a 501(c)(4) nonprofit. A 501(c)(4) nonprofit is defined by the IRS as a nonprofit that is devoted to some sort of social welfare issue. Such organizations can’t endorse candidates without risking their tax exempt status, but they can run the sort of issue ads that the NAACP ran directed at Bush.

For Wellstone and other extremist supporters of campaign finance reform, allowing the NAACP to take out such ads is an intolerable loophole in the law. As such Wellstone recently introduced an amendment to the campaign finance reform bill currently under consideration by the Senate which would forbid 501(c)(4) organizations from taking out any sort of ads within 60 days of a primary election.

Several opponents of any campaign finance reform, namely Republican Mitch McConnell, have actually signed on as supporters of Wellstone’s bill. Why? Because it is clearly an unconstitutional restriction of free speech, and there’s a good chance opponents of campaign finance reform will succeed in crafting any resulting bill in such a way that the Supreme Court will have to strike down the entire law rather than pick and choose to strike down just Wellstone’s amendment.

Wellstone, for his part, offers only the most pathetic of defenses in favor of his amendment. Despite the clear language from the Supreme Court on this matter, Wellstone thinks his amendment would survive legal challenge. And what about those NAACP ads? Don’t worry, Wellstone says, the Federal Elections Commission will be able to tell the good ads from the bad ads,

A comprehensive study conducted by the Brennan Center of ads run during the 1998 election found that only 2 genuine issue ads — out of the hundreds run — would have been inappropriately defined as a sham issue ad. Finally, in the event of constitutional problems, the Wellstone amendment is fully severable.

Hmmm. A sham issue ad, of course, is where the nonprofit claims to be just promoting an issue but, in fact, is really endorsing a candidate. Was the NAACP ad a sham issue ad? I would hazard a guess that it probably was. Moreover regardless of whether you think it was or not, the additional reporting costs and lawyers fees necessary to defend every advertisement would put everything back to square one — groups with large financial resources would still be in the game while the genuine grassroots efforts would get pushed out of the process entirely (Jesse Helmes once cleverly used the FEC to go after an ACT UP chapter that made the mistake of attacking him in a radio interview — few genuinely small groups can afford the risk of a protracted dispute with the FEC).

On Wellstone’s Senate web site there is some delightful Orwellian language with his office saying that these provisions are only fair,

Wellstone points out that limiting the issue ad ban just to corporations and labor will invite a shift in spending to non-profit groups in future elections, suggesting that in future years — even if this bill should pass — Congress will be forced to revisit sham issue ad regulation to close yet another loophole in federal election law.

Liberals used to trumpet this saying that the best response to speech with which they disagreed was simply more speech. Wellstone and others seem to have reversed this and decided that the less speech the better. It’s more than a bit weird to see a Democrat supporting efforts to outright ban political advertisements by labor unions. I guess they think that’s a small price to pay for an outright ban on corporate ads, but it seems like one immense Faustian bargain.

Hopefully the Supreme Court will still manage to save the soul of the country by invoking the ultimate loophole to this whole process, the First Amendment.

Source:

Wellstone Pushes to Close Sham Issue Ad Loophole In McCain-Feingold Campaign Finance Reform Bill. Paul Wellstone, Press Release, March 26, 2001

Not really, but it was odd that the same man who has in the past had no problem championing campaign finance reform laws that would clearly be found unconstitutional by the Supreme Court was one of the few politicians who spoke up last week to suggest taking a bit more time and discussion before going after the entertainment industry.

On the other hand, McCain’s comments illustrate the absurdity of the whole situation. McCain actually told ABC’s This Week,

Before we embark on censorship we’d better make very sure where this leads. … Frankly I don’t know the answer. I’m reluctant right now to say I’m ready to pass some kind of law that imposes some sort of censorship on the industry.

He’s reluctant(!) to impose censorship? Oh thank goodness — that makes me feel so much better. Apparently the big political choice Americans have these days is between politicians who are reluctant to impose censorship and those who are ready to go ahead and impose censorship right away. What part of the First Amendment don’t these yahoos understand?

It’s a sign of how little respect their is for the principle of free speech today that the main debate between the Republicans and Democrats has devolved to a contest over who is willing to impose the most censorship. Gore’s campaign chairman WIlliam Daley appeared on CBS’ Face the Nation to say Gore wants to encourage the industry to self-regulate with the clear implication that if they don’t, then government will step in. George W. Bush’s response to this government strong-arming is that it doesn’t go nearly far enough.

To be fair, Lynne Cheney did note that nobody has the power to impose the sort of regulation that Gore (or Bush) was proposing, but she completely fails to understand the effect this sort of rhetoric has in undermining support for the First Amendment. It is because of relentless attacks like this that you see close to half of people in some polls saying newspapers should have limitations placed on their ability to criticize public officials.

Cheney also noted the hypocrisy of Gore and Lieberman hanging out with Hollywood’s power brokers and then calling for censorship of Hollywood (whereas the Bush position is apparently that he wants to censor them and he really can’t stand them). The part that I still don’t get is that Hollywood has lined up behind Gore and even Nader — both candidates who are pretty clear that they would regulate speech as a commercial product which could be applied to everything from movies to newspapers to this web site. Even Bush isn’t willing to go that far to my knowledge.

Source:

McCain Leery of proposal to sanction entertainment industry. The Associated Press, September 17, 2000.

For the past several months issues of privacy, especially when it comes to the Internet, have popped up repeatedly in the news. Double Click got spanked by the media and consumers because it wanted to track in detail how people surfed the web. A government anti-drug site recently made news because it was using browser cookies to track users, which embarrassed the Clinton administration because it has been on the forefront of attacking private companies over Internet privacy.

With all of this emphasis on privacy and the right of people to be free of agencies and companies tracking their every move, you’d think the usual suspects would have been crying to the heavens when the Senate passed a bill last week taking away the right to privacy for some forms of political speech. Instead, the bill to force political-action committees incorporated under section 527 of the federal tax code to reveal their donors was heralded as a giant step forward.

This is hardly a scientific survey, but a lot of the anti-secret political speech advocates probably agree with the sentiments expressed in a recent Christian Science Monitor editorial applauding the passage of the bill:

The question is whether the public has a right to know where the groups’ money is coming from. Since there is no essential activity in a democracy than fair and open elections, the answer, obviously, is yes. And despite constitutional arguments lobbed by some critics of reform, disclosure has no bearing on individuals’ rights to participate in the political process. Participation and openness about that participation should be inseparable. [Italics mine]

That last sentence is worth repeating: participation and openness about that participation should be inseparable. If someone wants to be anonymous, he or she should, according to the Christian Science Monitor, simply butt out of politics. This is a bizarre view that is completely at odds with the First Amendment.

There is no addendum to the First Amendment that says speech is only free to the extent that it is not anonymous. In fact, many of the crafters of the Constitution wrote anonymously or pseudonymously, the classic case being that of the Federalist Papers, but there was a ton of material published in Colonial America and then prior to the Constitution’s ratification that was done without identifying its origin.

It isn’t too hard to think of many instances in which writers and donors might not want their identity revealed. It wasn’t too long ago, in fact, when southern anti-integration activists tried to force the NAACP and other civil rights groups to disclose all of their contributors. Suppose the National Organization for Women sets up a PAC to attack George Bush’s record on abortion. Does the Christian Science Monitor really want to say that all contributors must be disclosed? Obviously if this is the case a lot of people such as abortion doctors, fearful of being targeted by anti-abortion extremists, might be severely deterred from contributing.

And if, in fact, the Monitor is serious that all participation in politics should require full disclosure of the persons involved, Americans can forget any idea about privacy on the Internet. A group of judges in Pennsylvania are suing an Internet site using the Monitor’s very reasoning. The site has a discussion area which allows people to post anonymously, and some of those anonymous posts criticized Pennsylvania judges. Pennsylvania has a law that forbids judges to engage in partisan activities, and the judges want the names of the posters revealed to see if any of the anonymous individuals are in fact judges.

The American Civil Liberties Union is defending the web site using a defense that would make the Monitor cringe — ACLU attorney Susan Yohe is arguing that removing the right to anonymous speech would have a chilling effect on free speech. This is also precisely what the Senate’s bill removing anonymity for donors to certain non-profit groups will do — chill political speech and reduce the range of voices and positions heard. In its editorial the Monitor claimed the bill was “a credible start” to campaign finance reform, but rather it’s a continuation of the constant cheeping away of Americans’ First Amendment rights.

Sources:

Money With a Name on It. The Christian Science Monitor, July 3, 2000.

Web site criticism draws legal complaint. Pittsburgh Tribune-Review, June 30, 2000.