Outlawing political speech

December 16, 2003|By Steve Chapman

CHICAGO -- In March 2002, the American Civil Liberties Union wanted the House of Representatives to pass a bill banning employment discrimination against gays. So it ran radio ads in the Illinois district of Speaker Dennis Hastert, who was running for re-election, urging him to bring it up for a vote. Addressing the speaker, the ads asked, "What will it be? Protecting workers from discrimination or more delays?"

The ads got the ACLU nothing: Mr. Hastert ignored the demand.

But if the law in effect today had been around then, the ad would have gotten the ACLU worse than nothing. Just putting it on the air would constitute a felony.

That's the result of the McCain-Feingold campaign finance package, which was upheld last week by a closely divided Supreme Court.

The law says groups such as the ACLU have no right to broadcast ads on how members of Congress handle matters of policy when an election is looming.

Mr. Hastert was on the primary ballot, and the ad ran within 30 days of the election. So even though he had no primary opponent, the ad would have been illegal. The law bans corporations, including nonprofit ones, from "electioneering communications" within 30 days of a primary election or 60 days of a general election -- by which it means any ad that "refers to a clearly identified candidate for federal office."

Never mind if the ad has nothing to do with the election. "We can't mention anybody who's running for office, basically," says ACLU counsel Joel Gora of Brooklyn Law School.

It may come as a surprise that, under our constitution, Congress can forbid advocacy groups from commenting on members of Congress at the very moment voters are most likely to pay attention -- namely, election season. But five justices agreed that people engaging in this type of political speech can be sent to jail.

Dissenting Justice Antonin Scalia expressed understandable surprise that the court "would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

The court replies: No big deal. Groups such as the ACLU, said the majority, may avoid prosecution "by simply avoiding any specific reference to federal candidates."

Criticize all you want -- just don't name names!

The ACLU could also satisfy the law by forming a political action committee, using separate funds. But PACs are legally required to disclose the names of their donors, something many ACLU members prefer to keep private. PACs also have to make voluminous reports on their activities to the Federal Election Commission.

"You have to register with the government to criticize the government," complains Mr. Gora.

In any event, saying the ACLU may communicate its views by creating a political arm is like saying McDonald's can avoid a ban on hamburgers by opening sushi bars. PACs are established to help elect candidates, which is not the mission of the ACLU.

"Since its founding, the ACLU has never taken a position in a partisan political election," it told the court. "Because it is a nonpartisan organization that does not endorse or support candidates, all of the ACLU's advocacy is focused on issues."

The organization has made a cause of opposing the administration's counterterrorism policies, such as the USA Patriot Act. But if the White House decides to press Congress for an expansion of law enforcement powers next fall, the ACLU won't be allowed to air ads telling Americans to write the president with their objections.

Why? Because "issue ads," in the court's view, "are intended to influence the voters' decision and have that effect." And how do we know they have that intent and effect? Because five justices say so.

They treat ads about vital issues as vaguely un-American. But then, they regard much of American political life with horror. Those challenging the law, said the court indignantly, "never satisfactorily answer the question of how `uninhibited, robust and wide-open' speech can occur when organizations hide themselves from the scrutiny of the voting public."

Hiding from scrutiny, by not disclosing information such as donor names, is now considered dangerous. This would come as a huge surprise to the authors of the Federalist Papers, written to promote ratification of the very constitution the court is now interpreting. Those patriots -- Alexander Hamilton, James Madison and John Jay -- signed their essays "Publius."

Supporters of McCain-Feingold can take heart that Publius' vision won't get in the way of tight restrictions on speech about candidates for office. Seth Waxman, who defended the law before the court, offered a bracing interpretation of this verdict. When it comes to campaign finance, he exulted, "Congress is not handcuffed by the First Amendment."

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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