Published December 15, 2003
Dissenting Supreme Court Justice Antonin Scalia called it “a sad day for freedom of speech.” And so it was, because the Court’s decision upholding the McCain-Feingold campaign finance reform (search) presages more assaults on our First Amendment rights.
Let’s be clear about what a slim majority of the nation’s highest tribunal approved: The Constitution says “Congress shall make no law … abridging the freedom of speech,” but Justices Stevens, O’Connor, Souter, Ginsburg and Breyer say Congress can legally silence political speech expressed in TV “issue ads” beginning 60 days before a general election and 30 days before a primary.
Avoiding the “appearance of a corrupting influence” of money in politics is more important to the justices than preserving our unabridged right to speak our minds about a democracy’s most important political issue: who should represent us. These five justices have effectively insulated congressional incumbents from criticism in TV ads for two months before an election.
Because it abridges a fundamental constitutional right, McConnell, United States Senator, et. al. v. Federal Election Commission, et. al. (search) ranks with such previous infamous decisions as Dred Scott (search), upholding slavery in 1858, and Plessy v. Ferguson’s (search) 1896 approval of separate-but-equal schools.
There are two particularly disturbing implications of McConnell v. FEC. First, it encourages elected officials, bureaucrats and judges at all levels of government to seek more curbs on political speech. The decision’s logic is compelling: Political speech that is “bad” two months prior to an election must also be corrupting two months and a day before the vote.
Does anyone seriously doubt that after the 2004 elections there will be efforts to lengthen the ban from 60 days to 90 days or even 120 days? Why stop there? The nature of government is to seek to expand its power, and as government regulation of political speech increases, our freedom is decreased.
Second, the same logic will be applied sooner or later to political ads appearing in other media before an election. The message contained in a corrupting TV spot must also be corrupting when it appears in your daily newspaper, talk radio or the Internet. As Justice Thomas noted: "The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press."
So, not only is the stage thus set for a vast expansion of the FEC -- more regulation always means more bureaucrats -- but the range of media in which government silences political speech will grow. Today TV, tomorrow the Internet? The present decision’s potential harm to the First Amendment dwarfs the abuses sanctioned by the infamous Alien and Sedition Acts that forever marred John Adams’ White House years.
There is hope if the politicians and activists who opposed McCain-Feingold -- mostly, but not all, conservatives -- and the news media that now face the real prospect of effective prior restraint on publication of political views can get together to lead a new coalition to defy the Court and challenge the law at every turn in the 2004 campaign.
TV news directors, for example, could invite advocacy groups and supporters of congressional challengers against incumbents of both parties who voted for McCain-Feingold to read their issue ads’ texts during newscasts throughout the final two months before the election.
Similarly, newspaper editors should publish such texts, talk radio hosts discuss them and online journalists saturate cyberspace with them. Soon, the futility of banning political speech will be clear even to Congress, and the offending provision of McCain-Feingold will be repealed.
There is a precedent for such a conservative-media coalition. In 1931, the Court struck down Minnesota’s Public Nuisance Law (search), which allowed prosecution of journalists publishing any information arrogant public officials judged defamatory. That decision, which effectively ended legalized prior restraint of the press in America, was the culmination of an expensive legal and media campaign financed by Col. Robert McCormick, publisher of the Chicago Tribune and a rock-ribbed conservative.
“The control of the press is not given to the legislature but is reserved to the people. If there is an abuse of the liberty, it is for the people to decide so in the persons of the jurymen, not for the legislature to restrain it in advance,” argued McCormick’s attorney, Weymouth Kirkland. McCormick was intimately involved in writing Kirkland’s briefs, according to the publisher’s biographer, Richard Norton Smith.
Will the modern Col. McCormick please stand up?
A former newspaper journalist, Mark Tapscott is Director of The Heritage Foundation’s Center for Media and Public Policy.