Amending an Amendment

Posted: Dec 20, 2003 12:00 AM

The First Amendment is dead. Repealed. History.

Do I still have the right to still say that? Better check with the Supreme Court.

In a strange decision last week, a 5-4 majority of the court upheld the Bipartisan Campaign Finance Reform Act, often known as McCain-Feingold.

One element of the law bars “soft money” donations to political parties. In other words, even if you want to give a fortune to the Democratic Party, you’ll no longer be allowed to.

But political parties hardly matter anymore, because of another provision of McCain-Feingold. The law also bars them, and unions, interest groups and corporations from running TV ads that mention a specific candidate in the 60 days before a federal election. But if they’re not allowed to engage in politics during the two months before election day (when people might actually be paying attention), why should any of these groups bother engaging in politics at all? Or, maybe, that’s what the incumbent politicians want.

“In the main we uphold BCRA’s two principal, complementary features: the control of soft money and the regulation of electioneering communications,” wrote Justices John Paul Stevens and Sandra Day O’Connor in their majority opinion. They also insisted the law was “modest,” and would have “only a marginal impact on political speech.”

Now, the First Amendment is quite clear on this. “Congress shall make no law … abridging the freedom of speech.” As Casey Stengel might have said, you could look it up.

Nothing in the constitution would lead a reasonable person to divine that a law would be OK as long as it has only a “marginal impact” on political speech. And, unquestionably, a law that allows Congress to “regulate electioneering communications” would violate the First Amendment. Yet five justices saw fit to let that unconstitutional law stand.

This is just part of a troubling trend -- judges reading the Constitution to find what they want to find there, and discarding what’s actually written there if they find it inconvenient.

Probably the best illustration of finding something that isn’t there is the so-called “right to privacy.”

Here’s how the American Civil Liberties Union explains it on their Web site: “The right to privacy is not mentioned in the Constitution, but the Supreme Court has said that several of the amendments create this right. Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference from the government.” (Their emphasis).

This extra-constitutional Constitutional “right” was used in 1973’s Roe v. Wade to legalize abortion and, most recently, last summer to toss out a Texas law banning sodomy. It’s been reaffirmed in ruling after ruling, and is clearly still expanding.

Which brings us back to the First Amendment. Since it’s actually in the Constitution, why is it shrinking, rather than expanding? Lawmakers bear much of the blame, of course. After all, they’re the ones who passed McCain-Feingold in the first place.

Supreme Court Justices O’Connor, Stevens, Steven Breyer, David Souter and Ruth Bader Ginsburg shoulder even more of it, for misreading the First Amendment and deciding that it allows Congress to place restrictions on certain types of political speech.

But President Bush bears the most blame. He knew McCain-Feingold was unconstitutional. “I believe individual freedom to participate in elections should be expanded, not diminished,” he announced at the bill signing in March 2002. Then he signed a bill that will diminish public participation in elections.

“When individual freedoms are restricted,” Bush continued, “questions arise under the First Amendment. I also have reservations about the constitutionality of the broad ban on issue advertising.” But for political reasons, he punted the issue to the courts, and hoped they would do the right thing. They didn’t.

Eventually, a future Supreme Court ruling will overturn large sections of the McCain-Feingold, perhaps after we witness the amusing spectacle of someone being hauled off to jail for attempting to televise a political ad attacking Sen. Jones or Rep. Smith on Nov. 1.

But until that happens, we’ll just have to do what Congress has ordered -- keep our mouths shut.