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THE CONSERVATIVE REVIEW - January 29, 2010
A 'Reform' Wisely Struck Down
by George Will
WASHINGTON - Last week's Supreme Court decision that
substantially deregulates political speech has provoked
an edifying torrent of hyperbole. Critics' dismay reveals
their conviction: Speech about the elections that determine
the government's composition is not a constitutional right
but a mere privilege that exists at the sufferance of
government.
How regulated did political speech become during the
decades when the court was derelict in its duty to actively
defend the Constitution? The Federal Election Commission,
which administers the law that rations the quantity and
regulates the content and timing of political speech,
identifies 33 types of political speech and 71 kinds of
"speakers." The underlying statute and FEC regulations
cover more than 800 pages, and FEC explanations of its
decisions have filled more than 1,200 pages. The First
Amendment requires 10 words for a sufficient stipulation:
"Congress shall make no law... abridging the freedom of
speech."
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Extending the logic of a 1976 decision, the court has now
held that the dissemination of political speech requires
money, so restricting money restricts speech. Bringing
law into conformity with this 1976 precedent, the court
has struck down only federal and state laws that forbid
independent expenditures (those not made directly to, or
coordinated with, candidates' campaigns) by corporations
and labor unions. Under the censorship regime the court
has overturned, corporations were even forbidden to send
political communications to all of their employees.
The New York Times calls the court's decision, which
enables political advocacy by (other) corporations, a
"blow to democracy." The Times, a corporate entity, can
engage in political advocacy because Congress has granted
"media corporations" an exemption from limits.
The Washington Post, also exempt, says the court's
decision, which overturned a previous ruling upholding
restrictions on spending for political speech, shows
insufficient "respect for precedent." Does the Post
think the court incorrectly overturned precedents that
upheld racial segregation and warrantless wiretaps? Are
the only sacrosanct precedents those that abridge (others')
right to speak?
Alarmists say the court's ruling will mean torrential
spending by large for-profit corporations. Anna Burger,
secretary-treasurer of the Service Employees International
Union -- it has spent $20 million on politics in the last
five election cycles -- says a corporation will "funnel
its shareholders' money straight to a campaign's coffers."
Wrong. Corporate contributions to candidates' campaigns
remain proscribed.
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Cleta Mitchell, Washington's pre-eminent campaign finance
attorney, rightly says that few for-profit corporations
will jeopardize their commercial interests by engaging in
partisan politics: Republicans, Democrats and independents
buy Microsoft's and Pepsi's products. If for-profit
corporations do plunge into politics, disclosure of
their spending will enable voters to draw appropriate
conclusions. Of course, political speech regulations
radiate distrust of voters' abilities to assess unfettered
political advocacy.
Mitchell says the court's decision primarily liberates non-
profit advocacy groups, such as the Sierra Club, which the
FEC fined $28,000 in 2006. The club's sin was to distribute
pamphlets in Florida contrasting the environmental views
of the presidential and senatorial candidates, to the
intended advantage of Democrats. FEC censors deemed this
an illegal corporate contribution.
Barack "Pitchfork" Obama, in his post-Massachusetts
populist mode, called the court's ruling a victory for,
among others, "big oil" and "Wall Street banks." But
opensecrets.org reports that in 2008 lawyers gave more
money than either of those, and gave 78 percent of it to
Democrats, who also received 64 percent of contributions
from the financial sector.
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Even if it were Congress' business to decide that there is
"too much" money in politics, that decision would be odd:
In the 2007-08 election cycle, spending in all campaigns,
for city council members up to the presidency, was $8.6
billion, about what Americans spend annually on potato
chips.
Critics say raising such sums requires too much of
candidates' time. Well, then, let candidates receive
unlimited -- but fully disclosed -- contributions, and
trust voters to make appropriate inferences about the
candidates.
Undaunted, advocates of government control of political
speech want Congress to enact public financing of
congressional campaigns, and to ban individuals from
participating in politics through contributions. Fortunate-
ly, this idea -- "food stamps for politicians" -- is wild-
ly unpopular. Public financing of presidential campaigns
has collapsed. Obama disdained it in 2008; the public
always has. Voluntary, cost-free participation, using the
checkoff on the income tax form, peaked at a paltry 28.7
percent in 1980 and by 2008 had sagged to 8.3 percent.
This is redundant proof that the premise of campaign
finance "reform" is false. The premise is that easily
befuddled Americans need to be swaddled in regulations
of political speech.
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