George Will / July 11, 2010

In Disclose Act, a Free Speech Clamp

WASHINGTON – Two splendid recent developments have highlighted how campaign finance “reforms” have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the “appearance” thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.

WASHINGTON – Two splendid recent developments have highlighted how campaign finance “reforms” have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the “appearance” thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.

The Supreme Court has blocked implementation of Arizona’s Clean Elections Act. Under it, candidates who accept taxpayer funding of their campaigns receive extra infusions of tax dollars to match funds raised by competitors who choose to rely on voluntary contributions. The law punishes people who do not take taxpayer funds. Its purpose, which the Supreme Court has said is unconstitutional, is to restrict spending – and the dissemination of speech that spending enables – in order to equalize candidates’ financial assets. This favors incumbents, who have the myriad advantages of office. And it is patently intended to cripple candidates funded by voluntary contributions: Who wants to give to a candidate when the donation will trigger a nearly dollar-for-dollar gift to the candidate – or candidates – the contributor opposes? Just as the new health care legislation is a step toward elimination, by slow strangulation, of private health insurance and establishment of government as the “single payer,” laws like Arizona’s are steps toward total public financing of campaigns – government monopolizing funding for campaigns that determine the control of government.

In Congress, Democrats have not yet put the final blemishes on their proposal for restricting political advocacy, the Disclose Act (a clunky acronym –Democracy Is Strengthened by Casting Light on Spending in Elections), but already it is so awful it is excellent. Its nakedly partisan provisions, and the squalid process of trying to ram it into law, illuminate the corruption that inevitably infects what is supposed to be a crusade to purify politics: When constitutional rights are treated as negotiable, the negotiations corrupt the negotiators.

The National Rifle Association began a bizarre bazaar when it told Democrats it would not oppose Disclose if it exempts entities with a cynically constructed set of attributes that only the NRA has. When other interests howled, Democrats began tweaking the bill to enlarge eligibility for membership in the category of groups that will have broader speech rights than others do. The NRA’s intellectual ludicrousness and moral disarmament is in arguing that the Second Amendment’s protection of the right to bear arms is absolute, but the First Amendment’s protection of free speech (“Congress shall make no law” abridging freedom of speech) is for favored groups to negotiate with … Congress.

The campaign-reform community’s self-inflicted disgrace with Disclose is not just in continuing to treat the First Amendment as a turkey to be carved. It also extends the blackout periods in which certain kinds of political advocacy are banned. The increasingly opaque apparatus of political speech regulation that Democrats favor is beginning to resemble the rococo tax code. The contrast with the First Amendment’s limpid simplicity would cause reformers to blush, if they were capable of embarrassment.

For all its faults, some of which the Supreme Court has declared unconstitutional, McCain-Feingold was at least evenhanded: It favored incumbents but did not contain provisions overtly intended to secure partisan advantage. Democrats are rushing to enact Disclose to control this November’s elections and before the Supreme Court can adjudicate its dubious constitutionality. They are betting that Republicans will be unable to get quick injunctive relief.

McCain-Feingold supporters could at least claim that they had evidence of a need. They said their law responded to decades of experience with supposed defects of the existing system. Disclose, however, is a putative cure for a hypothetical ailments. They are those which Democrats assert, without evidence, will result from the Supreme Court ruling that unions and corporations – including nonprofit advocacy corporations, from the NRA to the Sierra Club – have a First Amendment right to independent (not coordinated with candidates’ campaigns) political advocacy. Disclose is a compendium of burdensome regulations and mandates designed to largely nullify the court’s ruling for corporations. It leaves unions largely free to continue spending on behalf of Democrats.

Beware when the political class preens about protecting us from “special interests.” The most powerful, persistent and anti-constitutional interest is the political class. Bradley Smith, former chairman of the Federal Election Commission, says Disclose should stand for Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections. It is a reason for voters to multiply those losses.

© 2010, Washington Post Writers Group

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