Limits on speech? - free speech and campaign-finance reform - Brief Article - Editorial

Progressive, The, Dec, 1997 by Matthew Rothschild

There is no issue I've spent more time thinking about this year than campaign-finance reform and free speech. I've read every article I could get hold of on the subject. I've tried to puzzle through the maze of existing laws and the competing claims of reformers. And I've tried to hash it out with my colleagues, though we still may not be in agreement.

It's such a hard call that we thought we'd let you watch two venerable institutions fight it out--the ACLU vs. Public Citizen. Now you make the call.

For me, it's been particularly difficult because here at The Progressive we take the First Amendment very seriously. In 1979, we fought the U.S. government for the right to publish "The H-Bomb Secret." Our defense was the First Amendment. We've always maintained that the government has no right to tell Americans what they can or cannot say. We've defended the Nazis in Skokie; we've defended hate speech: we've defended banned books; we've defended Mapplethorpe. As Erwin Knoll, my predecessor, was fond of saying, "We are absolutists on the First Amendment."

But what does that mean in this case? That any limits on campaign advertising are infringements on the Constitution? George Will and many other Republicans are now claiming this high ground, advocating that all limits on campaign spending should be lifted.

This "sky's-the-limit" approach has no attraction for me. It would simply compound the corrupting power of money in politics, leaving the wealthy and corporations with more clout than ever.

But on what constitutional basis do we build our case for limiting campaign spending? Many on the left say the answer is that money is not speech. I find this facile. Just because it takes money to purchase an ad, does that mean the government has a right to censor that ad?

I worry that in our eagerness to get money out of politics, we'll give the government inordinate power. Some campaign-finance-reform proposals would bring the government into the business of telling people what they can or cannot say. Take McCain-Feingold. It would prohibit all groups except PACs from taking out ads that mention candidates by name within sixty days of an election.

If Paul Wellstone runs for President, and your favorite nonprofit group that promotes universal health care wants to take out an ad praising Wellstone for his position on this issue, how would you feel if the government said no?

So where does this leave me? Wary about using terms like "absolutist." If the word is taken at its literal meaning, the government has no role whatsoever in limiting campaign spending, or false advertisements, or gross sexual or racial harassment.

But that doesn't make me a First Amendment relativist. Beware crude dichotomies. We must cherish the First Amendment, and cherish democratic rule at the same time. That's not only my duty, it s the Supreme Court's, and it's all of ours here in the United States.

How do we do that?

Any imposition of limits should meet the following conditions: There should be an overriding social interest, all other options for solving the problem should be exhausted, and the limits should be least restrictive.

In the case of campaign finance, the social interest could not be greater: Our democracy itself is for sale. But McCain-Feingold fails on the other two counts.

First, there is a better solution to the problem: full public financing. Any candidate who gets enough signatures to qualify for the ballot should receive an amount of money equal to that spent by candidates in the previous campaign. This would go a long way toward getting corrupt money out of politics.

The candidates who took public funding would not be allowed to raise money privately. Sure, some millionaires and some hustlers would skip the deal and try to outdistance the publicly financed candidate, but at least that candidate would have a running start.

Second, McCain-Feingold's limits on issue advocacy are too expansive. More than ever before, the federal government would be in the dirty business of inspecting our speech and gagging our mouths. And it would tell us that we couldn't say certain things on Labor Day that we could say on August 31. This is the epitome of arbitrariness.

I recognize that allowing issue ads to mention candidates names leaves open a loophole. But it s better for us to sort through these ads ourselves than have the government do it for us.

Some of McCain-Feingold I support, especially the abolition of soft money. The giving of unlimited contributions to parties today is as obscene and corrupting as the giving of such contributions to candidates was before Watergate.

But what I m not in favor of is letting the government dictate the content of speech That's going way too far for me.