Call your lawyer

Posted: Oct 31, 2004 12:00 AM

What? You don't have your own attorney on retainer? How on earth do you plan to take part in our elections, then?

Perhaps, in the throes of this nasty season, we should change our country's slogan from "The land of the free and the home of the brave" to "Land of 10,000 lawyers." But, of course, there are so many more lawyers than that.

Don't get me wrong. My beef isn't with attorneys, but with the need to consult attorneys every time an American citizen would like to open his or her mouth to say something political. Or worse, a group of citizens band together to say something more effectively.

How did this come about?

Congress sacrificed the First Amendment on the altar of Pristine Elections; the Supreme Court donned black robes and cheered the ritual killing. Though no reasonable person could square the McCain-Feingold Act ? the instrument of the sacrifice ? with the clear language of the First Amendment, that inconvenience was ignored. The sacrifice of liberty, you see, was supposed to usher in an election process without "negative" ads and empower the little guy, too.

Feel empowered?

Feel all that "positivity"?

Now, the failure of McCain-Feingold to squelch negative ads should be looked at as a blessing. I want to hear the whole argument of all sides. Bring on the Swift Boat Vets, bring on George Soros, Sinclair Broadcasting, and everybody else. I really want to hear what they have to say and I don't want my information ethically cleansed by some tribunal of commissars in Washington. Or in my state capitol.

The McCain-Feingold deal of handing over freedom to get sweet and pleasant elections didn't quite come off. Not only is negativity thriving, the "little guy" seems as beleaguered as ever. More money than before ? not less ? is being spent by the very wealthiest to speak out. Some have even given tens of millions ? not that there's anything wrong with it, as Seinfeld would say.

Meanwhile, no matter how strongly the universally trumpeted "little guy" believes in his candidate, being unable to afford a battery of attorneys and consultants, he cannot donate more than $2,000. Fair? Empowering the little guy?

This certainly hasn't taken the money out of politics. It's merely squelched the money and speech of some people so that others may spend and spend ? and scream.

McCain-Feingold is a monstrosity. However, lets not make the mistake of thinking that McCain-Feingold destroyed a functioning First Amendment. Since 1974, in many small steps, Congress has been doing precisely what the First Amendment expressly says Congress cannot do: regulating speech, especially political speech, especially political speech around elections.

McCain-Feingold just took a giant leap forward ? into tyranny. And now our movies ? from Fahrenheit 9/11 to Celsius 411 ? need political lawyers, too. Their makers and their advertising campaigns fall under Federal Election Commission jurisdiction. With Sinclair Broadcasting's decision to air a documentary portraying candidate John Kerry "negatively," we find television programming in need of legal defense, because it is subject to legal attacks. The day in which a film or television program is censored for mentioning the name of a politician is not far off.

But if there is any silver lining in this election, it is the massive spending. The reaction of so many people ? wealthy and not ? has been to respond to the controls on speech with new ingenuity, by putting more of their "lives, fortunes and sacred honor" on the line. That, rather than suppressed speech, is in keeping with American tradition.

The increased spending in this cycle has caused many of the big media outlets to whine and call for further clampdowns by Congress in future campaigns. But during this mean season, these media outlets have also demonstrated for all to see that they are not fair or balanced. They are partisans. Does anyone seriously doubt which dog CBS or The New York Times has its money on? Or Fox News or other conservative outlets, for that matter?

At the same time, most of the big media have argued incessantly for Congress to regulate and effectively block issue ads close to elections, calling this speech a "First Amendment loophole." But the power of big media and their record of numerous partisan intrigues will lead many to view "freedom of the press" as the biggest loophole of all.

Don't take the bait. We have two paths we can travel. We could go with the flow and try to regulate our opponents' speech, hoping that the jack-booted thugs of the future speech police shall be enforcing our will against our political adversaries. Or we can scramble back to the First Amendment's promise of "free-speech loopholes" for one and all. As I make clear in my Common Sense e-letter, freedom works just fine.

What kind of elections will we have if we were to stop Congress from regulating our speech? Rough and tumble elections, no doubt, like this one. But with many more voices. And many fewer lawyers.

Is it freedom of speech if you must hire an attorney before you hand your neighbors a flyer with your opinions on it, sing a song at a rally for your preferred candidate, make a movie, pool your money with others to run a TV commercial or contribute your own hard-earned cash to the full extent of your passion instead of the arbitrary limit set by incumbent congressmen?

Doesn't seem much like freedom. A woman emailed me this week afraid that it might be against the law for her simply to make a political button without first filing legally with the authorities. She's not just paranoid.

Is what she's doing illegal? Should it be? What if she sent it to every person in her neighborhood?

Can a country remain free without the freedom to speak out about politics? As it stands now, before you answer, you may want to consult an attorney.