Commentary

Two Welcome Victories for Political Speech

By Patrick Basham
January 5, 2003

By American standards, European nations heavily restrain political speech and participation in campaigns. This is also true of our northern neighbor, Canada. However, the latest legal developments in Europe and Canada suggest that those who prefer to stifle political speech and limit political participation through regulation may be losing ground. American campaign finance regulators should take note.

Recently, the European Court of Human Rights threw a wrench into the widespread European practice of banning paid political advertising on both television and radio. The European Court ruled on a Swiss case involving an animal rights group that wanted to air an ad encouraging viewers to eat less meat and to better protect animals. The Swiss government forbade broadcasters from airing the ad as it contravened the country’s ban on political advertising.

However, the European Court ruled that the Swiss ban violated the “freedom of expression” article of the European Human Rights Convention. Score one for political speech.

What will the outcome of this case mean for comparable political ad bans in other European countries? British Prime Minister Tony Blair’s government, for example, is now in the unenviable position of trying to figure out how to maintain the longstanding British ban on political advertising while making British law compatible with European law.

Blair is hoping the European Court overlooks the new British communications legislation that maintains the political ad ban. He trusts that the European Court will accept his Electoral Commission’s position that providing free air time to British parties is a sufficient sop to free speech.

Of course, the allocation of free air time - a “reform” long-favored by American campaign finance regulators - is a politically driven, arbitrary process that serves the interests of the incumbent political class, regardless of partisanship.

Limiting the amount of political advertising by banning paid ads ensures that the electorate receives only cursory snippets of information from the parties and little, if any, from other, non-partisan sources. Critically, these advertising restrictions further the cause of incumbency protection, i.e., they significantly reduce the likelihood that incumbents will be defeated.

In practice, money spent on political advertising enables political information to be widely disseminated, thereby increasing the probability of a competitive election. According to a recent study by the University of Wisconsin’s Kenneth Goldstein, U.S. political ad spending during the 2002 mid-term election totaled $996 million and purchased 1.5 million television ads. That may sound like a lot, but it’s money that’s largely well spent. Matthew Felling of the Center for Media and Public Affairs points out that, “As the amount of face time on local and national broadcasts diminishes, political advertising potentially increases the opportunity for candidates to communicate with voters.”

What about campaign spending by interest groups? Our new campaign finance law severely restricts “third party” ad spending during the 60 days prior to an election. To our north, the Canadian government just came unstuck in its attempt to gag interest groups.

On Dec. 16, an appeals court struck down Canadian legislation that effectively banned participation in campaigns by interest groups and individuals. The law restricted non-partisan campaign spending to a ridiculously low $2,000 per district and $100,000 nationally. Score another one for political speech.

Needless to say, the Canadian political elite is outraged at the court’s ruling. Don Boudria, a senior parliamentarian for the governing Liberal party, predicts an “open season for third parties.” In a clear admission that the goal of such regulation is to censor non-statist speech, Boudria fears interest groups will now run ad campaigns, “like in the United States,” attacking socialized health care and gun control.

Commenting on the Canadian government’s position, the National Post newspaper proffered this retort: “How are sizeable minorities…to get their voices heard at the crucial moment in the life of a democracy - during an election - unless they can band together and challenge the policymaking monopoly of entrenched parties?” Indeed.

In the New Year, the U.S. Supreme Court will address similar questions concerning draconian advertising restrictions placed upon non-politicians by the American political class. We should hope the United States joins the trend toward liberalizing controls on political speech and participation.

Patrick Basham is senior fellow in the Center for Representative Government at the Cato Institute.