McCain-Feingold in the Ivory Tower

George Will
Posted: Oct 25, 2007 12:01 AM
McCain-Feingold in the Ivory Tower

WASHINGTON -- The speech policeman's lot is not a happy one, as the University of Montana at Missoula is learning. Herewith a tale about the mess that institution has made by regulating political speech.

Perhaps the university noticed the praise that speech rationers in Washington receive when, in the name of combating corruption or the appearance thereof, they regulate, as with the McCain-Feingold campaign finance law, the timing, quantity and content of political speech. In any case, the university has a rule that limits candidates for student government offices to spending a maximum of $100 when campaigning among the university's 10,000 students.

Restrictions on freedoms, and especially freedoms as fundamental as those of the First Amendment, require serious justifications. So the question is: To what pressing problem did the university's $100 limit respond? Or is it merely another manifestation of the regnant liberalism common on most campuses -- the itch to boss people around?

Again, what caused the university to so severely circumscribe the spending necessary to disseminate political advocacy? Was it big-money corruption, or the appearance of it, in student politics and government? Not exactly.

The Associated Students of the University of Montana (ASUM) allocates student activity fees, which are public funds, and lobbies students, the university administration and the state Legislature on policy matters. In April 2004, Aaron Flint ran for the student senate. During the campaign, a large number of posters critical of him appeared around the campus. He believes they were placed by the University of Montana College Democrats and the liberal Montana Public Interest Research Group. Neither group is subject to the expenditure limits applied to candidates.

To counter this opposition, Flint spent $214.69 of his own money on professionally made posters and pizza for his campaign workers. He won. But because he spent an impermissible $114.69 -- enough to buy seven large Domino's pepperoni pizzas -- in order to respond to unregulated speech, ASUM removed him from office. This presumably taught the university's students important lessons about the civic danger posed by too many posters (too much political speech) and too much pizza, and about the dignity of the law.

Flint took the university to court, charging that his rights of political speech and association had been violated. A district court, genuflecting before the university's academic autonomy, declared the $100 limit a reasonable measure to "ensure all students enjoy equal access to the educational benefits available through student elections and governance."

Now, that is a novel argument: Equal "access" to the educational benefits of student politics would be diminished if more political advocacy were permitted. Unpersuaded, Flint appealed, but his appeal took him to the epicenter of novel argumentation, the reliably liberal and frequently reversed 9th U.S. Circuit Court of Appeals.

It ruled against Flint, arguing that the university's limits on political speech are reasonably related to two permissible institutional objectives -- providing "student candidates a valuable educational experience" and maintaining the election process "as an educational tool, rather than an ordinary political exercise." Two things were unexplained: What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?

Anyway, last summer the U.S. Supreme Court, while upholding the right of a high school to restrict speech advocating the use of illegal drugs, stressed that students' rights are greatest with respect to political speech and ideological speech. And Justice Sam Alito, joined by Justice Anthony Kennedy, stressed that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."

Courts have spun a complex tangle of law distinguishing different degrees of permissible regulation of speech depending on which kind of "forum" it occurs in -- a "limited public forum," a "designated public forum," even a "metaphysical" forum (it is not physical). In this case, the forum is neither mysterious nor small nor the university's property: The $100 limit covered an individual's political advocacy not just on campus but on public sidewalks and streets throughout Missoula, where many students live.

If the Supreme Court takes Flint's appeal, it will see that the University of Montana is indeed teaching students a lesson about politics -- the pernicious lesson that politics should be conducted under tight restrictions on advocacy. The university is preventing students from learning such essential civic skills as how to raise and allocate political money for advertising and organizing. Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels.