Free speech on life support

Posted: Apr 16, 2006 12:05 AM

WASHINGTON -- If in November Republicans lose control of the House of Representatives, April 5 should be remembered as the day they demonstrated that they earned defeat. Traducing the Constitution and disgracing conservatism, they used their power for their only remaining purpose -- to cling to power. Their vote to restrict freedom of speech came just as the GOP's conservative base is coming to the conclusion that House Republicans are not worth working for in October or venturing out to vote for in November.

     The ``problem'' Republicans addressed is that in 2004 Democrats were more successful than Republicans in using 527 organizations -- advocacy groups named after the tax code provision governing them. In 2002, McCain-Feingold banned large ``soft money'' contributions for parties -- money for issue-advocacy and organizational activities, not for candidates. In 2004, to the surprise of no sensible person and most McCain-Feingold supporters, much of the money -- especially huge contributions from rich liberals -- was diverted to 527s. So on April 5, House Republicans, easily shedding what little remains of their ballast of belief in freedom and limited government, voted to severely limit the amounts that can be given to 527s.

     David Dreier, R-Calif., explained, sort of. He said he voted against McCain-Feingold because ``dictating who could give how much to whom'' violated the First Amendment, but now he favors dictating to 527 contributors because McCain-Feingold is not violating the First Amendment enough: It is not ``working as it was intended.'' That is, it is not sufficiently restricting the money financing political advocacy.

     Candice Miller, R-Mich., said that restricting 527s would combat ``nauseating ugliness, negativity and hyperpartisanship.'' Oh, so that is what the First Amendment means: Congress shall make no law abridging freedom of speech unless speech annoys politicians.

     Improving the tone of politics, leveling the playing field, fulfilling the intent of McCain-Feingold -- the reasons for expanding the restrictions on political advocacy multiply.

     McCain-Feingold restrictions on the amount, timing and content of political speech were ratified by the Supreme Court, which embraces this perverse idea: Because elected officials are experts about politics, they deserve vast deference when they write rules governing speech about, and campaigns against, elected officials. When the court gave its imprimatur to McCain-Feingold's premise -- that big government should have big power to regulate speech about itself -- it guaranteed that what happened April 5 will happen incessantly: The First Amendment is now permanently in play, its protections to be truncated whenever congressional majorities envision short-term partisan advantages.

     The Washington Post, exemplifying the media's hostility to speech rights other than their own, eagerly anticipates the next fiddling. As it crouches behind its media exemption from the restrictions it favors for rival sources of political speech, the Post eggs on the speech regulators and hopes for ``future legislation'' if money diverted from 527s flows, as surely it will, into other political uses. And so the regulatory regime metastasizes, nibbling away at what McCain-Feingold enthusiasts evidently consider the ultimate ``loophole'' -- the First Amendment.

     Fortunately, the measure the House passed on April 5 will not become law this year. Not because Republican senators are too principled to pass it, or because Democrats have a truly principled opposition to it, but because Senate Democrats will have 41 votes, enough to block action on it. 

     The Democrats, who favored McCain-Feingold and now are as cynical as Republicans about defending free speech only when it serves their competitive interests, will someday win control of Congress. Then they can wrap their anti-constitutionalism in the Republicans' April 5 rhetoric. They can say:

     ``In 2006, you Republicans said that because Democrats have done better than Republicans with 527s, the 527s should be restricted in order to 'level the playing field.' Now we will level the playing field by restoring the 'fairness doctrine' to broadcasting, thereby eliminating conservatives' unfair domination of talk radio.''

     The 211 Republicans who voted for big government regulation of speech will have no principled objection. How many principled Republicans remain? Only 18. The following, who voted against restricting 527s:

     Roscoe Bartlett (Maryland), Chris Chocola (Indiana), Jeff Flake (Arizona), Vito Fossella (New York), Trent Franks (Arizona), Scott Garrett (New Jersey), Louie Gohmert (Texas), Jeb Hensarling (Texas), Ernest Istook (Oklahoma), Walter Jones (North Carolina), Steve King (Iowa), Connie Mack (Florida), Cathy McMorris (Washington), Randy Neugebauer (Texas), Ron Paul (Texas), Mike Pence (Indiana), John Shadegg (Arizona) and Lynn Westmoreland (Georgia).

     On this remnant of libertarian, limited-government conservatism a future House majority can be built. The current majority forfeited its raison d'etre on April 5.