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Blunt and Bartlett deserve accolades for understanding that BCRA criminalizes the very speech that should be most protected.

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Starting the Climb Back up the Slippery Slope

It seems so obvious: "Congress shall make no law … abridging 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." It’s difficult to understand how the authors of the First Amendment could have been more plain.

Nevertheless, 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."

Now, let’s 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," doesn’t it?

The Supreme Court didn’t think so, and in late 2003, it upheld virtually all of the provisions of the new law, holding that BCRA’s regulations were an acceptable means of preventing corruption or the appearance of corruption.

The best way to eliminate corruption from politics remains voting out the scoundrels and putting the corrupt ones in jail. That’s 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.

By 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.

As 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.

In 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.

Nevertheless, the Court has spoken and has decided not to evaluate regulation of campaign finance and political speech through this prism.

That 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 speech.

Congressmen 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.

[Posted March 18, 2004]