Paul Jacob

Let a thousand voices boom across the airwaves, the Internet and in newspaper columns condemning the assault that Congress and the Supreme Court have inflicted on the First Amendment--on our most essential, fundamental speech: the ability to criticize our elected officials. I join the chorus.

However, it is the cynical nature of the McCain-Feingold campaign finance law that permits us to speak in these ways. We are merely prohibited from communications that could--even ever so indirectly--endanger the reelection of incumbents in Congress. That is the speech that has been criminalized: speech that could threaten the very powerful congressmen, who wrote and passed the law.

For centuries, mankind has wondered whether the pen is really mightier than the sword. But in modern political campaigns, incumbents and their battalions of consultants know that TV advertisements beat both hands down. That’s why there will be no interest groups driving an incumbent crazy with television ads espousing a message and naming that congressman by name. Congress banned these ads, at least when they matter most to politicians.

The law silences U.S. Term Limits and other independent groups during the critical time legislators and citizens are thinking most about politics--around elections. That’s no accident. Speech that threatens incumbents in the Congress has been outlawed. Ineffective speech, at least in their eyes, remains "free."

The Court’s reasoning, for lack of a better term, was that free speech rights must be sacrificed on the alter of the government’s compelling interest in reducing corruption and the appearance of corruption. Justices Stevens and O’Connor wrote for the majority: "The proliferation of sham issue ads has driven the soft-money explosion."

In Orwellian fashion, it helped the Court to designate the banned issue ads by independent groups as "sham" ads. It’s a hip word Sandra Day is tossing about, but does it have any legal definition? Perhaps labeling an advertisement a "sham" is like naming someone an "enemy combatant"--all constitutional rights are then lost.

I wonder: Did the Court watch every ad aired by a non-profit issue advocacy group to make this "sham" conclusion? Are they clairvoyant enough to know what future ads might say? Some of the ads may not be popular, but, if they stepped over a legal line, what was that line?

If the Court had actually viewed ads, one would expect them to be able to fashion a standard by which so-called sham ads could be distinguished from "legitimate" speech. This the Court did not do. Instead, they approved the ban on all issue-oriented speech.

The Supreme Court did not have enough evidence to justify the law based on the need to reduce actual corruption. (Boy, was I surprised to learn there was any shortage of that!) Instead, the First Amendment "burdens" were justified merely for the goal of reducing the "appearance of corruption."

How does that work exactly? Some guy in Hoboken thinks our elected Congress is corrupt and, therefore, we lose our right to speak against the very gang the guy thinks are crooks?

Of course, the problem is not a lone guy in Hoboken, but the vast majority of thoughtful Americans everywhere, who perceive that something is rotten in D.C.

In a society committed to the concept of innocent until proven guilty, the "appearance of corruption" is a foolish legal concept to begin with. But, the idea is more than foolish, it is treacherous, when used to take away our constitutional rights, destroy political competition and entrench those in power. It is reminiscent of the old Soviet political style in that the process used to diminish the "appearance of corruption" will be to silence voices crying out against corruption.

Meanwhile, under McCain-Feingold, incumbents can still run any ad they want anytime they want, attacking any group or individual they want.

If an independent group has been effective in taking an incumbent to task prior to the approach of an election, when their speech will be silenced, the incumbent could run ads at election time slamming that group and wildly distorting the truth. While spot after spot by the congressman plays on television screens mercilessly smearing the organization, the federal speech Gestapo will be there to make certain that the insolent group is not permitted to air a single ad which dares mention the powerful congressman by name or, heaven forbid, show his or her royal likeness.

So much for the free flow of ideas. Freedom must now be sacrificed to "fairness," as defined by a majority of career politicians in Congress and the unpopular Court.

Furthermore, the implications of the law, and the Court’s expansive interpretation, threaten more than issue ads by groups such as U.S. Term Limits, the Sierra Club or the NRA. I write a daily Common Sense e-letter, which is distributed free to all intelligent, well-informed people. What can I say or not say in the 30 days before a primary and the 60 days before a general election?

We could have a battery of high-priced attorneys look into it. However, it’s easy to judge the new law. If mentioning a congressman’s name in a commentary in any way jeopardizes that congressman’s reelection, the speech will be criminalized. If not, we’re free to pop off.

What about our newsletter? Our web-page? What about mailings and door-to-door activities? Freedom of speech sure was a much less confusing legal standard.

Even radio talk show host Rush Limbaugh expressed concerns about what he can and cannot say on his radio program. Impossible that a Democrat might go to court using McCain-Feingold to silence or harass Rush? You’re stuck in old-think.

Almost as sad as losing our right to speak, is the fact that McCain-Feingold will do nothing to even the playing field or reduce corruption. (For the record, I don’t care about appearances). In the last reporting cycle, under the new McCain-Feingold law, 90 percent of the money raised went to incumbent congressmen. Challengers received only 10 percent of funds raised. Even?

Is Congress any less corrupt after passage of McCain-Feingold? Come on, stop laughing and finish the column.

Yet, the Court wasn’t satisfied with simply upholding this legislative monstrosity, it actually encouraged incumbents in Congress to regularly monkey around with the campaign finance rules to close any new loopholes, i.e. any new ways to address their stranglehold on power.

Justice Scalia, in his dissent, wrote: "Who could have imagined that the same Court which…has sternly disapproved of restrictions upon…virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications and sexually explicit cable programming would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

There is a reason the First Amendment begins with the words, "Congress shall make no law…" Like the McCain-Feingold law that Congress made.

Oh, well, at least for now we are still free to keep copies of that wonderful old relic of a bygone era: the U.S. Constitution. Just for the sentimental value. Our rulers no longer consider it any threat to them.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.