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Limits on cash stifle free speech

By ROBYN E. BLUMNER
Published May 28, 2006

Why don’t liberals understand the freedom-crushing nature of campaign finance reform?

How come it is easy for liberals to see the First Amendment interest in other overheated free speech issues, such as reporting on the classified operations of the National Security Agency or displaying Robert Mapplethorpe nudes, but when it comes to political discourse during an election season, they’re all for government restraints.

This is the same question that famed First Amendment lawyer Floyd Abrams raises in his autobiographical book Speaking Freely: Trials of the First Amendment. In one chapter, Abrams recounts a speech he gave to a Unitarian church congregation in New York City in 2000. The audience was very friendly toward his discussion of the Pentagon Papers case and the Brooklyn Museum case in which Abrams defended the museum after then-New York Mayor Rudolph Giuliani sought to cut its funding. The mayor had been deeply offended by a Nigerian artist’s use of elephant dung in a painting of the Virgin Mary that the museum exhibited.

But when Abrams said that the McCain-Feingold campaign finance reform measure would likely put unconstitutional limits on political activity and promote censorship of political speech, his audience audibly objected.

Abrams and I are in the same tiny club. We believe in freedom for flag burners, Mapplethorpe and the Republican Party and Swift Boat Veterans for Truth. We lose most of our liberal allies halfway through the list.

Liberals don’t like the power that large campaign contributors have on our political landscape. Campaign finance reform is an attempt to tamp down the influence of big money in campaigns. And while I understand and sympathize with the impulse, I am not willing to accept any legislative scheme that limits the ability of individuals to spend money to raise their voice in the political arena.

If the government put caps on the amount of money one could give to the NAACP or an abortion rights group, my fellow liberals would cry foul and point to the First Amendment. By starving those groups of resources from deep-pocket donors, the government would be effectively constraining their communicative reach. Yet, the same analysis holds for political campaigns.

Maybe I’m not articulate enough or motivated enough to run for public office. Instead I send money to the candidate who will best express my point of view. I am underwriting and supporting a surrogate for my own political speech — just as people do when they send money to groups like the Sierra Club. Any government limit placed on my ability to fund a candidate’s communications is an infringement on my First Amendment freedom.

I understand that others will be richer than I am and they will donate more and communicate louder. But freedom of speech has never been a communitarian enterprise concerned with providing a level playing field for expression.

Wealthier people have always had better access to mass media, from the early days of the printing press, but that doesn’t negate their rights. In 1976, the

U.S. Supreme Court stated bluntly, “the concept that government may restrict the speech of some elements in our society to enhance the relative voice of others is wholly foreign to the First Amendment.”

What liberals don’t seem to get is that chasing money from politics can’t be done without obliterating our freedom in the process. We are at the point now, under McCain-Feingold, that government has control over how and when political activism may occur.

The law, passed in 2002, makes it a crime to show or mention the name of a federal candidate in a broadcast advertisement within 30 days of a primary and 60 days of the general election unless the ad was paid for through a political action committee. Astoundingly, the U.S. Supreme Court, by a 5-4 vote, allowed this provision to stand.

The result has been predictable. During the 2004 election, Abrams writes, the Chamber of Commerce abandoned plans to sponsor ads on class-action reform legislation, and the AFL-CIO didn’t broadcast ads it had planned criticizing federal overtime regulations. In both cases the ads named members of Congress running for re-election.

Abrams also advised Lions Gate, the distribution company for Michael Moore’s movie Fahrenheit 9/11, that its advertisements showing President Bush could not run near the primary or election. He told the general counsel of the Penguin Group (USA) that a book by Sen. John Kerry couldn’t be advertised on radio or television during July, the month before the Democratic primary, and most of September and October 2004.

How is this not highly destructive censorship? And the news gets worse. In early June, the Washington state Supreme Court will hear a case involving two radio talk show personalities whose promotion of an antitax initiative on their radio show was found to be an in-kind contribution and subject to state campaign finance laws.

So when they reach their contribution limit, they maintain radio silence? Any time now the U.S. Supreme Court is expected to determine the constitutionality of a highly restrictive Vermont campaign finance law that caps contributions for some races at $200 and limits overall spending by gubernatorial campaigns to $300,000. The newly constituted Supreme Court should set the law aside and begin reversing some of the damage the liberals on the court have done to our political freedoms.

Abrams and I are lonely voices for an irreducible right to freedom of expression. Our liberal friends have a blind spot when it comes to campaign donations. They don’t see that by attacking the free speech rights of their political enemies they have rent gaping holes in the constitutional protections for us all.

[Last modified May 28, 2006, 06:41:38]