Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years.
An exaggeration? Judge for yourself. Consider the sorts of cases the Federal Election Commission now finds itself deciding:
Item—In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy's pro-gun documentary (The Rights of the People) on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as "electioneering communication." Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.
Item—On September 9, the FEC ruled that a conservative group called Citizens United was not a "media organization" and therefore could not use unrestricted money to broadcast ads marketing a book and film critical of Democratic presidential candidate John Kerry. "Not everyone can be a media organization," said one FEC commissioner.
Item—Also on September 9, the FEC ruled that the Ripon Society, a Republican group, could run TV ads touting the anti-terrorism efforts of "Republicans in Congress" because no political candidate was referred to in the ads.
Item—That day, the FEC also ruled that a Wisconsin car dealership, called the Russ Darrow Group, could continue using its own name in its car ads during the election season. Russ Darrow Jr., the patriarch of the company and father of its current president, was running for Senate in Wisconsin (he lost in the primary). The FEC found that the dealership's ads were not "electioneering" because they did not feature the candidate himself.
Set aside how you or I might have decided any of these cases. Focus on the fact that federal bureaucracies—the FEC and ultimately the federal courts—are now in the business of making such decisions. "That's where we've gotten to today," FEC Chairman Bradley Smith, a critic of the law, said in an interview. "Can a car dealership run ads?"
In July, Wisconsin Right to Life, an anti-abortion group, took to the airwaves with radio and TV ads urging Wisconsinites to "contact Senators [Russell] Feingold and [Herb] Kohl and tell them to oppose the filibuster" of conservative judicial nominations. Feingold, a Democrat, is up for re-election; Kohl, also a Democrat, is not. Aware that it was testing the boundaries of the law, the group fashioned ads that do not ask listeners to support or oppose either man, do not mention an election or a political party, and do not even mention the senators' positions on the judicial filibusters that were the subject of the ads—information, says Barbara Lyons, Wisconsin Right to Life's executive director, that the group would have provided but for fear of legal trouble.
"This is a grassroots lobbying campaign," says Lyons. But on August 15, the group was forced to take its ads off the air until Election Day. "It has changed our life dramatically," Lyons says. "We're doing no radio or television advertising—not in terms of candidate information. They've taken away our speech rights in just giving information on candidates, and now they're taking away our lobbying rights. Congress is in session, there are legitimate issues before the Congress, and the public has a right to know about them."
All of this, and more, is the result of the Bipartisan Campaign Reform Act, otherwise known as the McCain-Feingold law, which Congress passed in 2002 and the Supreme Court OK'ed in 2003. Critics of that law—I among them—feared three untoward consequences. First, the ban on parties' solicitation of unlimited donations (so-called soft money) might defund and so hobble the parties. Second, the resulting vacuum might be filled by private groups that are unaccountable to the voters. Third, the law could sharply curtail the ability of citizens groups and lobbying organizations to make their voices heard. Against those risks, BCRA promised the considerable benefit of shutting down the soft-money racket, whereby politicians and parties shake down groups and companies for big-dollar contributions.
In some respects, the law has bested its critics. The soft-money chase has abated. The parties, instead of going hungry, have found new sources of money. Unaccountable interest groups are indeed spending to influence the election, but they are supplementing rather than replacing the parties. Worries about free speech, however, have proved all too well founded. "We're heading into a new era," says Smith. "You get less protection talking about your congressman than for Internet pornography sites or burning a cross outside a church or topless dancing."
The law automatically regulates as "electioneering" any broadcast ad that refers to a specific federal candidate within 30 days of a primary or 60 days of a general election. Corporations must finance such ads with limited-dollar contributions—called "hard money," perhaps because raising it is so hard. As of August, for example, Wisconsin Right to Life had less than $14,000 in hard money, not enough for a broadcast lobbying campaign.
The rationale for the new restrictions is that corporate treasuries should not be spent to influence elections. But BCRA made a mistake. In debating the bill, Congress cynically and thoughtlessly approved an amendment, sponsored by the late Sen. Paul Wellstone, D-Minn., that defined "corporation" to include nonprofits.
In America, if you want to organize people to do something, you form a corporation. Most advocacy organizations and citizens groups are, of necessity, nonprofit corporations. "The law drew no distinctions between General Motors and the ACLU," says Joel Gora, a Brooklyn Law School professor who advises the American Civil Liberties Union. As a result, he says, "there are no ACLU ads challenging President Bush on civil liberties in the war on terror."
Astonishingly, the Supreme Court, which many in Congress had counted on to overturn the Wellstone amendment, instead ringingly ratified it. And so the law of the land now sharply circumscribes what is arguably the most important of all civil rights in a democracy: citizens groups' right to criticize politicians. "What the Supreme Court has done," says David O'Steen, the executive director of the National Right to Life Committee in Washington, "is make it possible for these guys to set limits on how and when they're criticized."
Apologists for the law argue that groups can still broadcast their ads outside of election season; they can still run print ads; they can raise "hard money" for their ads; they can simply avoid all references to political candidates. All true, and all irrelevant. For the government to justify abridging a core civil right by pointing to other activities that are still legal is, shall we say, Putinesque.
In a case now pending, Wisconsin Right to Life has asked the Supreme Court to exempt grassroots lobbying campaigns from the law's "electioneering" rules. The FEC retorts that abortion is an issue in the Wisconsin Senate race, and so Wisconsin Right to Life's ads "will have an electoral effect."
Of course, the FEC is correct. Educating voters influences them, which is the whole point. "Electioneering" is not distinguishable from other forms of political speech, even in principle. Unfortunately, from this correct premise the FEC draws the wrong conclusion, which is that the law should restrict any "corporate" (read: group-sponsored) speech that might influence an election. Where that rule leads is amusingly illustrated by the FEC's political advice to Wisconsin Right to Life: Instead of saying "Contact Senators Feingold and Kohl and tell them to oppose the filibuster," just urge Wisconsinites to "call the U.S. Senate at 202-224-3121 and tell them to stop the filibuster." Wow, that's a zinger.
Better idea: Repeal the Wellstone amendment. That would lift the gag on nonprofits, while leaving certain reporting and accounting requirements in place. Or go even further, and repeal the BCRA "electioneering communications" restrictions altogether, returning to the pre-2002 law that let all concerned advertise to their heart's content, provided that ads refrained from explicitly supporting or opposing a candidate. A bill sponsored in the Senate by Saxby Chambliss, R-Ga., and in the House by Roscoe Bartlett, R-Md., would do just that.
Either way, fix the law before 2006. One election with a speech code is more than enough.