Commentary

Freedom of Speech, Except When It Matters

This article appeared in the McClatchy-Tribune on August 16, 2006.

The Federal Election Commission, the six-member agency charged with implementing campaign finance law, is split on a proposal to allow grassroots organizations like the American Civil Liberties Union and pro-life groups to run ads lobbying their fellow citizens. The change, which would take effect immediately, would set out conditions under which groups could lobby Congress without running afoul of the McCain-Feingold law. Members of the Commission, three Republicans and three Democrats, could divide along party lines.

You might be surprised to learn that lobbying like this is illegal at all. The First Amendment prevents Congress from abridging freedom of speech or the right “to petition the government for redress of grievances.” So urging fellow citizens to contact their senators about issues on which you feel strongly seems like a fundamental right. But there are caveats.

In 2004, Wisconsin Right to Life, a pro-life organization, produced several television ads appealing to Wisconsin residents to ask their senators not to filibuster President Bush’s judicial nominees. One of those senators, Russell Feingold, was running for re-election in 2004, which meant—under the McCain-Feingold law, co-sponsored by Feingold himself—that airing the ads would have been illegal.

The same year, the ACLU sponsored radio ads opposing parts of a homeland security bill that affected immigrants. If those ads had been run in Wisconsin and had mentioned Feingold, they too would have been illegal.

How could this be? In 2002, McCain-Feingold stipulated that broadcast ads that mentioned a candidate for federal office less than two months before a general election were subject to federal campaign finance law.

Though they retained some First Amendment rights, labor unions and corporations have been prohibited for some time from contributing directly to candidates for federal office. Until 2002, they like everyone else had a right to sponsor ads concerning public issues and run them at a time of their choosing. Not surprisingly, they ran many of their ads near election day.

And why shouldn’t they? The public debates that inform voter choice inevitably involve issues and candidates. Much of the advertising blocked by McCain-Feingold—though hardly all—reflected poorly on incumbent members of Congress. Without such criticism and the debates it engenders, elections would hardly have any point.

Members of Congress, however, do not take threats to their re-election lightly. In passing McCain-Feingold, they required labor unions, corporations, and other groups to stop funding ads that threatened members of Congress at the moment the ads mattered most.

Sadly, the U.S. Supreme Court upheld this blow to free speech in a 2003 ruling that left groups like WRTL and the ACLU in the same boat as unions and corporations.

In spite of their desire to deflect criticism, a majority of Congressmen would probably support exemptions for the speech of groups like WRTL and the ACLU. Vermont senator James Jeffords, who wrote part of McCain-Feingold, stated in 2002 that it “will not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes.”

The law already has certain exemptions for news stories, commentaries and editorials, as well as speech on the Internet. Grassroots lobbying of the public, however, is not exempt. It should be.

Campaign finance laws are often intended to help or hurt political parties or sets of candidates seeking office. In votes on matters of procedure, the FEC sometimes splits along party lines. In this case, partisan concerns are irrelevant. As the examples of the WRTL and ACLU show, the benefits of freeing up grassroots lobbying will fall across the political spectrum.

Let’s not forget what is at stake here. A Republican member of the FEC, Hans A. von Spakovsky, noted recently that “the right of citizens to petition the government was deemed so fundamental and of such central importance that it formed the basis for the American Revolution.” Indeed, the right is older than the United States itself. The 1688 Declaration of Rights in England insisted upon the people’s right to petition king and parliament for redress of grievances.

Many Americans supported McCain-Feingold in the hope that it would prevent corruption of politics. Their concern is understandable. However, efforts to educate citizens on the issues facing them can hardly corrupt our political life. To the contrary, those efforts make our political decisions more informed. Like citizens, grassroots groups have a right to petition the government, and the FEC should vote to restore it.

John Samples is director of the center for representative government and author of The Fallacy of Campaign Finance Reform.