The Supreme Court's gag order

Posted: Dec 11, 2003 12:00 AM

The Supreme Court's 5-4 ruling upholding virtually all of the McCain-Feingold law limiting contributions to political campaigns and proscribing television advertisements close to elections is a serious attack on the First Amendment.

The court bought the argument by the law's proponents that money is inherently corrupting and that by limiting the amount of money and the timing of speech, the entire political process will somehow become more virtuous. Like legislation designed to control guns rather than the people who use guns illegally, money cannot corrupt politicians. Politicians corrupt themselves.

Last year at a gathering of journalists in Boston, Nat Hentoff (an authority on the First Amendment) and I heard Rep. Marty Meehan, D-Mass., respond to a question about limits to political ads one to two months before either a primary or general election. Meehan explained the limits were necessary "because that's when people are paying attention." So, when people are most interested in politics is when they should receive less information about the candidates? What kind of twisted reasoning is this?

This "terrible, terrible decision," to quote Hentoff, will further empower television. Under the guise of news reporting, liberal and conservative anchors and hosts can advance their personal political agenda by the guests they select to appear on their shows before an election. No advocacy group - unless it is a registered political action committee (PAC) - will be able to purchase an ad to tell another side of an issue or defend or criticize a political candidate. So, a Dan Rather, Peter Jennings or Tom Brokaw can interview liberals who attack President Bush, providing little or no equal time for those who disagree, and a Sean Hannity can invite on his Fox program people who support Bush and ignore Bush opponents. This may empower TV anchors, but it doesn't empower voters.

Few individuals can afford the cost of television time, which is the best medium for reaching the greatest number of people. In the recent past, individuals have chosen to align themselves with groups that represent their political viewpoints. Whether it is the ACLU on the left or National Right to Life on the right, the freedom of individuals through these organizations will be limited.

Political action committees can still function under the ruling, but PACs must provide lists of contributors to anyone interested. Hentoff reminds me of the 1958 NAACP vs. Alabama case in which the state sued the civil rights organization to stop it from conducting activities in Alabama on grounds that it had failed to comply with the requirement that "foreign corporations" register before doing business in the state. During the proceedings, Alabama requested the NAACP produce a large number of its records. The organization did so but held back its membership lists. The Alabama court found the NAACP in contempt and imposed a large fine.

In its opinion overturning the state court ruling, Supreme Court Justice John Harlan wrote, "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. ." Justice Harlan then said something that could serve as a stern rebuke to the five members of the current Court who have effectively diminished the freedom of political speech: "In the domain of these indispensable liberties, whether of speech, press or association, the decisions of this Court recognize the abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action. ."

This Supreme Court has made the "indispensable" dispensable. It has also guaranteed that incumbents will have an easier time preserving themselves in office and that challengers will be further limited in having their voices and ideas heard. This is a loss for both parties and all persuasions. It will also diminish the political vitality of the nation.