Alexander's Column

Campaign Finance Reform: The law of unintended consequences?

Mark Alexander · Jun. 10, 2005

As a little refresher (not for our readers, but for politicians), the First Amendment to the Constitution of the United States reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Of course, you say. Everyone knows (or should) that the First Amendment guarantees the freedoms of religion and of speech, and prohibits Congress from regulating either one. Everyone also knows that judicial activists have all but completely ignored the limitation of this amendment’s prohibitions on Congress, and applied them to all public forums – federal, state and local.

Not to be outdone by the courts, however, Congress is now, in the name of the Bipartisan Campaign Reform Act of 2002, attempting to put its own limitations on political speech – the kind of speech our Founders most wanted to protect.

Republican Senator John McCain and Democrat Senator Russ Feingold, aided and abetted by both parties of Congress, the President and the Supreme Court, ostensibly passed this legislation “to get the big money out of politics.” However, like the campaign-reform movement brought on by the Watergate scandal in 1974 – the “reform” that brought us political-action committees – McCain-Feingold has introduced more influence-grabbing “big money” into politics than ever. Indeed, led by America-hating billionaire George Soros’s funding of many 527s, the PACs have taken control away from candidates and parties, made elections less competitive, created longer and more bitter campaigns through severe restrictions on advertising, and further distanced regular citizens from the political process. Such is the nature of “reform movements” in our nation’s capital.

All the same, regulating campaign contributions was only the purported purpose of the ‘02 reform movement. In reality, McCain-Feingold has always been about the regulation of political speech, and, as such, it constitutes a violent offense against First Amendment rights.

When they voted for it, many members of Congress knew McCain-Feingold was unconstitutional. When he signed it into law, President Bush knew it was unconstitutional – and said so. “Certain provisions present serious constitutional concerns,” said he. Nevertheless, the bill had momentum, and under political pressure the President and many members of Congress voted for a bill they believed was wrong, all in the belief that the more blatantly unconstitutional portions of McCain-Feingold would be overturned by the Supreme Court. “I expect,” said President Bush, “that the courts will resolve these legitimate legal questions as appropriate under the law.”

Of course, we know the outcome of that strategy: The Supremes upheld McCain-Feingold, in its entirety.

(Nota bene to the other two branches of government: By what logic do you reason that the Supreme Court will overturn legislation simply because it’s unconstitutional? Please, stop kidding yourselves.)

Now, three years later, the full effects of McCain-Feingold are just about to hit. As it reads, the 2002 law regulates political advertising in coordination with a candidate’s campaign appearing on “any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general-public political advertising.” At the law’s inception, the FEC wisely reasoned that the wording of this particular statute did not apply to the Internet – references to the Internet and the World Wide Web were included elsewhere in the law, so Congress must have intentionally omitted it here.

Then the reformers struck again. The boondoggling duo of McCain and Feingold sued the FEC, insisting that regulations on political speech did in fact apply to the Internet and to e-mail. U.S. District Judge Colleen Kollar-Kotelly agreed: “The commission’s exclusion of Internet communications from the coordinated-communications regulation severely undermines” the purpose of the campaign-finance law. The Commission’s three Republicans couldn’t convince any of the three Democrats to appeal the ruling, with the net result being that Big Brother is on his way to policing the cybersphere.

Under the law, which the FEC will have to enforce if Congress does not intervene, even a link to a candidate’s website will be considered a political contribution. While the value of such a “contribution” remains uncertain, Bradley Smith, one of the FEC’s three Republican commissioners, warns that FEC regulatory precedents don’t bode well for the blogosphere. “Corporations aren’t allowed to donate to campaigns,” notes Smith. “Suppose a corporation devotes 20 minutes of a secretary’s time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It’s still going to be difficult to value the link, but the value of the link will go up very quickly.”

Sound bad? That’s not all, warns Smith. “The judge’s decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.”

Under current law, however, “press exemption” is limited to a “broadcasting station, newspaper, magazine or other periodical publication.” This would bring the status of Internet-based publications – such as The Federalist Patriot – into serious question. So warns Commissioner Smith: “[Internet reporting services are] exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn’t fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today.”

The Internet is the ultimate frontier of truly free speech. Its ubiquity has made it a powerful tool for the spread of ideas and democracy around the globe. While the unparalleled access to information offered by the Internet certainly has its moral and legal pitfalls, its benefits far outweigh all negatives. If, however, “reform” is allowed to have its way and Congress fails to ensure the Internet’s continued independence by repealing those parts of McCain-Feingold that impinge upon free speech, the future of this column, and others like it, is anything but certain.

One note of hope: None other than Senate Minority Leader Harry Reid is on record in support of an Internet exemption from McCain-Feingold – and if Reid is on the right side of the issue, Congress has no excuse but to amend the law to ensure freedom on the Web.

As for the previous paragraph, only time will tell whether it constitutes a “contribution” to Senator Reid.

Quote of the week…

“I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment. … I hope that in the future the Congress and I can work together to remedy this defect of the current financing structure.” –President Bush in March of 2002, after he signed McCain-Feingold into law

To date, these “defects” have yet to be addressed by Congress or the Executive Branch.

Open query…

“This is an incredible thicket. If someone else doesn’t take action, for instance in Congress, we’re running a real possibility of serious Internet regulation. It’s going to be bizarre. …[B]logging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?” –FEC Commissioner Bradley Smith

This week’s “Alpha Jackass” award:

“Some will argue that the First Amendment of the Constitution renders unlawful any restrictions on the right of anyone to raise unlimited amounts of money for political campaigns. Mr. President, which drafter of the Constitution believed or anticipated that the First Amendment would be exercised in political campaigns by the relatively few at the expense of the many?” –John McCain, March 2001

The BIG lie…

“To permit an entire class of political communications to be completely unregulated irrespective of the level of coordination between the communication’s publisher and a political party or federal candidate, would permit an evasion of campaign finance laws.” –U.S. District Judge Colleen Kollar-Kotelly ruling on the regulation of the Internet, ordering the FEC to revise its rules

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