Political Speech Is Not Free Speech

George Will

12/11/2007 12:01:00 AM - George Will

What if the country held an election and there was no one to make sure that candidates played by the rules -- no agency that could issue regulations, write advisory opinions or bring enforcement actions against those breaking the law?

-- The Washington Post, editorially alarmed.

WASHINGTON -- The Post, dismayed by the prospect, in effect asks: What if we had deregulated politics -- including the sort of presidential campaigns that produced 33 presidents (including some pretty good ones -- Lincoln, TR, the sainted Coolidge, FDR, Truman, Ike) before the Federal Election Commission was created in 1975? Most of the rules, the possible nonenforcement of which has the Post in a swivet, are constitutionally dubious abridgements of freedom of speech and association, so sensible citizens should rejoice about the current disarray of the FEC.

The six-person FEC -- three members from each party -- enforces the rules it writes about how Americans are permitted to participate in politics. You thought the First Amendment said enough about that participation? Silly you.

The FEC's policing powers may soon be splendidly paralyzed. Three current FEC members, two Democrats and one Republican, are recess appointees whose terms will end in a few days when this session of Congress ends -- unless they are confirmed to full six-year terms.

Four Senate Democrats decided to block the Republican, Hans von Spakovsky. Republicans have responded: "All three or none." If this standoff persists until Congress adjourns, the three recess appointments will expire and the FEC will have just two members -- a Republican vacancy has existed since April. If so, because four votes are required for all official actions, the commission will be prohibited from such actions including the disbursement of funds for presidential candidates seeking taxpayer financing.

Democrats oppose von Spakovsky partly because when he served in the Civil Rights Division of the Justice Department he overruled staffers in the Voting Section who wanted to block a Georgia law requiring voters to present a government-issued ID before voting, as Americans do before boarding an airplane, entering many buildings, renting movies, etc. Von Spakovsky's critics say the law is a way of suppressing voting by poor, mostly minority, citizens. Eighty percent of Americans -- racists all? -- favor such laws. The Supreme Court probably will settle the issue in a case concerning Indiana's voter ID law.

Democrats oppose von Spakovsky also because, as the Post's editorial says, "he blocked career staffers who wanted to stop a Texas congressional redistricting plan; a divided Supreme Court later rejected part of the plan." "Part," indeed. The court affirmed the constitutionality of 31 of the 32 districts involved -- affirming von Spakovsky's legal judgment that those "career staffers" opposed.

The Post primly says: "Six former voting section employees asserted that Mr. von Spakovsky participated in politicizing the Civil Rights Division." Who are these "career staffers" who supposedly recoiled from politics?

Joseph Rich, while chief of Justice's Voting Section, contributed $455 to America Coming Together, an organization of Democratic activists. While he was a deputy chief of the Civil Rights Division's Housing Section, his section filed cases in which courts eventually compelled the government to pay $175,000 in attorneys' fees for the filing of unwarranted and even frivolous discrimination claims. Rich left Justice to join the Lawyers' Committee for Civil Rights Under Law, a left-wing advocacy group.

Jon Greenbaum and Robert Kengle also left Justice's Voting Section to join the Lawyers' Committee for Civil Rights Under Law. David Becker left to work for People for the American Way. Steve Pershing, a Democratic donor, left to work for the Center for Constitutional Litigation, which opposes tort reform. Gerry Hebert was the Voting Section lawyer in the case in which a federal court ordered the Justice Department to pay $86,626.24 in attorneys' fees and expenses as punishment for "unconscionable" actions. Hebert now works for the Campaign Legal Center promoting campaign "reforms."

The Post wants von Spakovsky confirmed only to keep the FEC functioning. He is being blocked because four senators have put "holds" on his nomination. One of those four who might be responsible for preventing the FEC from being able to disburse taxpayer funds to Democratic presidential candidates Joe Biden, Chris Dodd and John Edwards is ... Barack Obama.

Such funds come, however, from the few taxpayers who choose to use the $3 checkoff on their income tax forms. These funds cannot go to candidates in primaries until funds are allocated for both national conventions and both general election campaigns. But because 90 percent of taxpayers choose not to provide such welfare for candidates, there probably will not be enough money in the account to disburse until after the crucial primaries. Government regulation of politics, as of most things, is perverse.