It is to be hoped that the Supreme Court, which right now is writing its ruling about the constitutionality of McCain-Feingold, is as clearheaded as Gephardt is about the law he is proud to have ``led the fight for.'' Gephardt has never flinched from saying that the First Amendment is a dispensable relic. A few years ago, promoting his notion of ``healthy'' campaigns and democracy, he forthrightly said: ``What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy.''
As the Supreme Court writes its ruling it should remember that six years ago Gephardt proposed to amend the First Amendment with this language:
``Congress ... may adopt reasonable regulations of funds expended, including contributions, to influence the outcome of elections, provided that such regulations do not impair the right of the public to a full and free discussion of all issues and do not prevent any candidate for elected office from amassing the resources necessary for effective advocacy.''
Some people may prefer the simplicity of the First Amendment language -- ``Congress shall make no law ... abridging the freedom of speech'' -- that Gephardt's amendment was designed to improve. Is it prudent to empower the government, as Gephardt was prepared to do, to make the kind of judgments that James Madison's First Amendment forbids -- judgments about what regulation of speech is ``reasonable'' and what resources are ``necessary'' for ``full and free'' discussion of the government?
Because the First Amendment was not amended by Gephardt's language, the question now before the Supreme Court is not whether McCain-Feingold is prudent, but whether it is constitutional. Gephardt, who ``led the fight'' for it, says it is not.