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The “Good-Government” Attack on Free Speech

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I keep waiting for a swell of sanity to wash Senators John McCain and Russell Feingold’s campaign finance “reform” bill away once and for all. But I am beginning to despair that there isn’t that much sanity around anymore.

The polls show that most people don’t care about campaign finance issues. The downside of that apathy is that they are not paying attention to the fact that the Senate has passed a bill that will violate individual liberty in a big way. And President Bush may sign it!

An exaggeration? What would you call a law that would prohibit corporations and labor unions from placing television and radio advertisements that clearly identify candidates during the final 60 days of a general election? McCain-Feingold would do that. Yet it is a clear violation of the First Amendment. “Congress shall make no law … abridging the freedom of speech.” The Constitution makes no exception for corporations and labor unions. The only requirement should be that those organizations obtain their money through voluntary means. If they do, they should be free to place any ads they like. They are collections of persons and therefore have the same rights as their members.

The deceptive bill goes beyond this prohibition, however, on the matter of independent groups’ running ads during campaign. As the Cato Institute’s John Samples writes, “On its face, McCain-Feingold-Cochran does not try to prohibit or limit issue advocacy by those independent groups. Partisans of free speech may feel some relief that the bill does not restrict the rights of other groups. If so, that feeling is misplaced.”

The law seems to allow for the placing of ads independent of particular campaigns. But “coordinate activities” are subject to federal election law. As we all know, the devil is in the details, in this case, the definition. Samples notes, “The definition of coordinated activity in the bill is complex. For that reason, the concrete consequences of the bill’s expansive notion of coordination are not self-evident.” If the Federal Election Commission rules that an ad campaign was coordinated activity, the prohibitions would kick in. It’s another example of ex post facto law. Legislate now, define later.

There is method in what appears to be madness. As Samples notes, if “soft money” contributions to political parties are outlawed, as per McCain-Feingold, that money will go somewhere else, largely to independent groups. Hence, the limits on what those groups can do.

Is this not an outrageous assault on freedom of speech? How can Congress justify such an undermining of that cherished liberty? What are these politicians afraid of?

They say they want to fight corruption. But surely there are ways to do that short of interfering with freedom of speech. It’s not exactly clear what they mean by corruption anyway. Is it corruption to promote the candidacy of someone who thinks as you do? Of course not. Then why is it corruption for groups of people to do so? The fear of coordinated activity also shows a disrespect for individual liberty. Any coordination between an interest group and a campaign is a matter of free speech also. To interfere with such activities is to prohibit another legitimate First Amendment activity.

If the concern is that candidates will promise to do things in return for contributions, that conduct is as old as government and will not be stamped out by McCain-Feingold. Remember: the “evils” that this bill seeks to erase are the result of the post-Watergate reforms!

The real corruption in government is not that people seek to influence legislation; it’s that government holds life-and-death tax and regulatory power over everyone. As long as government can harm any segment of society by a change in the tax laws or regulations, people will work to ensure that their allies are in office. If you don’t like campaign finance activity, limit the scope of government power.

As for what the politicians are afraid of, that’s an easy question. They are afraid of losing their jobs. Any limits on contributions would perforce harm lesser-known challengers more than incumbents, who have many ways to get free publicity. McCain-Feingold is an incumbent-protection act plain and simple.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.