the Climb Back up the Slippery Slope
seems so obvious: "Congress shall make no law
freedom of speech, or of the press, or of the right of the people
to peacefully assemble
" According to the Merriam-Webster
Dictionary, "abridge" means "to reduce in scope:
diminish." Its difficult to understand how the authors
of the First Amendment could have been more plain.
in 2002, Congress passed and the President signed the Bipartisan
Campaign Reform Act (BCRA). Among the many provisions of the new
law, one specifically bars certain groups from engaging in political
speech in the days leading up to an election unless they adhere
to strict federal regulations. BCRA provides that if their message
mentions any federal officeholder, corporations, unions, and non-profit
organizations cannot advertise on television or radio for 30 days
before a primary election and 60 days before a general election
unless they use federally regulated "hard dollars."
lets be clear about what this means: a group of freely assembled
citizens is banned from saying anything about a member of
the government in the days before an election unless the group pays
for the ads with certain kinds of government-regulated contributions.
That certainly sounds like speech is being "diminished"
or "abridged," doesnt it?
Supreme Court didnt think so, and in late 2003, it upheld
virtually all of the provisions of the new law, holding that BCRAs
regulations were an acceptable means of preventing corruption or
the appearance of corruption.
best way to eliminate corruption from politics remains voting out
the scoundrels and putting the corrupt ones in jail. Thats
why free speech, especially the freedom to criticize elected officeholders,
is most necessary when government is corrupt or flouting the will
of the public. Yet, thanks to BCRA, criticizing a federal elected
official through the best means possible broadcast television
commercials has become nearly impossible, even if the aim
is to point out positions a Member of Congress has taken on an issue
or votes he or she has cast.
making it more difficult to criticize incumbents, point out their
positions on issues, and highlight votes they have cast, BCRA makes
it harder to defeat them. Thus, BCRA not only limits speech; it
protects incumbents from serious electoral challenges. This is precisely
the kind of situation that the First Amendment was designed to prevent.
they crafted the blueprint for our government, the Framers understood
that governments, by their nature, restricted freedom. But in order
to protect individual liberty, the Framers created the Bill of Rights,
specifically enumerating certain rights and placing them beyond
the reach of any government restriction. None of these could be
more unambiguous than the First Amendment.
other writings, we learn that the Framers were especially concerned
about protecting "political speech" the free flow
of ideas, dialogue, and criticism of and about government and politics.
They knew that for the republic to survive, political debates and
campaign contests had to be spirited. They knew that citizens must
be free to criticize and vigorously oppose government action without
fearing legal consequences.
the Court has spoken and has decided not to evaluate regulation
of campaign finance and political speech through this prism.
leaves Congress as the only forum for regaining our rights of speech
and association. Fortunately, some in Congress are beginning to
have second thoughts about BCRA, and its criminalization of core
Roy Blunt (R-MO) and Roscoe Bartlett (R-MD) have introduced the
First Amendment Restoration Act which repeals the provisions of
BCRA banning union, corporate, and non-profit advertising in the
days before elections. Blunt and Bartlett deserve accolades for
understanding that BCRA criminalizes the very speech that should
be most protected. They also deserve praise for recognizing that
government regulation of speech should not create job security for
those writing the law. Free speech advocates can only hope that
more of Members of Congress sprout similar backbones.
March 18, 2004]