With the Boss, but without the First Amendment

Posted: Aug 08, 2004 12:00 AM

Our first election without the First Amendment is, as Alice put it, "getting curiouser and curiouser."

The Boss has become a major player. Bruce Springsteen, that is, has entered the presidential fray. He has joined a bevy of other popular performers who will use their valuable musical talents in a 34-show, 28-city, nine-swing-state tour to raise money to defeat Republican President George W. Bush and elect Democratic Senator John Kerry.

Under our laws, if Springsteen were to hold concerts to raise money directly for the John Kerry for President campaign, he would be committing a crime. After all, his musical services are valued far in excess of the $2,000 presidential contribution limit. But it's fairly easy for pop stars to work through the new 527s that have sprung up to take the soft money that members of Congress like Mr. Kerry supposedly so disdain. So the law that forbids you and me from giving a penny more than $2,000 directly to George W. Bush or John Kerry does allow the Boss to contribute, in effect, millions.

But don't blame the Boss.

Politics Only for the Professionals

The McCain-Feingold campaign finance reform (the Bipartisan Campaign Reform Act) was supposed to decrease spending in politics ? especially large contributions from wealthy individuals and interest groups. Would anyone in his or her right mind suggest this has been the result? George Soros alone has donated more than $13 million to anti-Bush 527s.

While so-called reformers may wring their hands about such donations, I do not. I'm fine with the rich supporting their causes, so long as the greater numbers of the less well-off can donate and speak, too. But in the name of sticking it the rich, the reformers have given the rich the right to speak out in ways that average folk cannot.

I wonder if this inequity isn't the very purpose behind the law. As FEC Commissioner Ellen Weintraub said recently, "I don't think sophisticated political actors would have a hard time figuring out how to work within this framework."

No, only unsophisticated political actors ? such as 99 percent of American voters ? hit that wall. The special interests, the political party committees, the incumbents ? along with their entourage of lawyers and accountants ? can nimbly leap right over that wall. Comforting?

This is not to scorn what Democratic or the new GOP 527s are doing. I cherish speech whether I agree with it or not. And I say to everyone who can write a check or walk a precinct, "Bring it on." That's the American way. More speech is the answer to speech we don't like.

The First Amendment as More Than a Suggestion

Before Congress passed the present monstrosity, there was much discussion that an amendment to the Constitution would be required to allow Congress such sweeping regulatory powers over political activity, given the First Amendment's express prohibition of the same. Rep. Dick Gephardt of Missouri argued: "What we have is two important values in conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can't have both."

Unable to muster the support to amend the Constitution, Gephardt simply voted to ignore the First Amendment. So did a Republican-controlled Congress. All the major media outlets ? The New York Times, The Washington Post, the television networks ? lobbied for and cheered the extra-constitutional move, relatively unaffected by the new law. President Bush then signed the statutory amendment to the Constitution into law [sic] and the U.S. Supreme Court gave it the go-ahead.

In fact, the Court's majority (seven of nine appointed by Republican presidents) encouraged incumbents in Congress to go back and micromanage political speech whenever the mood strikes. Or more often.

Free and Clean

It is apparent that some of those calling for "fair elections" really seek government-controlled elections ? which ultimately means incumbent-controlled elections. As I have often reminded readers of my free Common Sense e-letter, such a desire for "fairness" and "equality of speech" is impossible . . . unless we repeal not only freedom of speech but also freedom of the press and freedom of association, and enforce economic equality down to the penny. (Perhaps, some of Pol Pot's former economic advisors would be available to assist in the restructuring.)

It is true that freedom allows the wealthy certain advantages over the less-wealthy. But it turns out that the regulation of political speech gives those same wealthy interests a far greater advantage.

The wealthiest can best afford the lawyers to deal with the regulators. A small businessman or a retired person, on the other hand, able and willing to spend $5,000 or $10,000 to support his or her favorite candidate, lacks the funds to risk an independent expenditure: he cannot afford the likely legal fees. And he doesn't have access to professional consultants. He might prefer to just give the money to the candidate. But he may not.

That freedom has been wiped out. Not merely by McCain-Feingold, but by earlier decisions that likewise allowed Congress to do what the First Amendment forbade Congress from doing.

What is our goal in elections? Tidiness? "Positive" images? Self-proclaimed "clean" speech? If that's how Americans answer, then politicians with a burning self-interest in controlling elections will be mighty glad to regulate cycle after cycle until our 99 percent re-election rate campaigns are squeaky clean and . . . and utterly free of free speech. (Even as the election financing gets ever-more messy.)

Tidiness is for children's rooms, not America's elections. I want freedom, where everyone is free to speak in any manner in which a message can be transmitted between two ? or two hundred million ? people. Free not only to speak, but to leverage one's celebrity. Or to remain anonymous. Free to make me whopping mad or cheer in support.

Free even to sing for what or whom we believe in. Because . . . aren't we all supposed to be the Boss?