Editorial for Friday — September 12, 2003

• Reform and free speech

Reform and free speech

Former Missouri Sen. Thomas F. Eagleton, a Democrat, says political contributions are like power. Campaign money corrupts; giant campaign money corrupts absolutely.

Mr. Eagleton and the 40 former members of Congress who have joined him on a brief to the U.S. Supreme Court know. They say they witnessed firsthand how big, unregulated campaign contributions have corrupted the legislative process and undermined the people’s trust in government. The former members of Congress argue that the Supreme Court should listen to their voices of experience and defer to the will of Congress by upholding the Bipartisan Campaign Reform Act – aka McCain-Feingold.

But there is that little matter of the First Amendment with its command that “Congress shall make no law . . . abridging the freedom of speech.” Speech by political associations and parties is the heart of the speech protected by the amendment. If the First Amendment protects hate speech, and epithets, and burning the flag – as it does – how can it not protect speech that is so central to a democracy?

This is the clash of values that will be laid before the court today when it meets in an extraordinary, four-hour session to consider the constitutionality of the McCain-Feingold campaign finance reform law. On one hand is the integrity of the formative acts of any republic: elections. On the other is our belief that more speech is better than less speech in finding the path to truth.

The issue is an urgent one for the Supreme Court to resolve because politicians need to know what rules they will be playing by in the impending election campaign.

In reaction to the Watergate scandal, Congress put $1,000 limits on campaign contributions by individuals. It didn’t take long for political parties to circumvent the limit by raising big, unlimited “soft” money contributions.

Initially, these contributions were supposed to be for party-building. But the parties figured out how to funnel money into ads that supported their candidates. By the 2000 election, nearly half of the funds raised by national parties was soft money. Ninety-three donors gave $100,000 or more in soft money to both political parties, according to Democracy 21, a group advocating of campaign finance reform.

The impetus for campaign finance reform grew amid stories of President Bill Clinton “selling” the Lincoln bedroom in the White House and six-figure donations to curry favor in Washington. As the Eagleton group told the Supreme Court, there may not be a quid pro quo, but the “quid is given with the expectation that the quo is . . . on its way.”

But Congress went too far. At the same time that it closed the soft money loophole, it also made it illegal for advocacy groups such as the National Rifle Association and the Sierra Club to use their own money to buy issue ads in the months leading up to an election. These issue ads are often annoying and misleading. And they aren’t really issue ads at all, but rather thinly veiled plugs for particular candidates. Still, the speech of political associations on issues of importance right before the election is some of the most important speech in a democracy.

The Supreme Court is a much stronger protector of the First Amendment than Congress. And the most conservative justices on the court – Clarence Thomas and Antonin Scalia – are the strongest guardians of this kind of speech. But they have been in the minority in recent cases. The court has said it would uphold regulations that do not “render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”

That standard does not offer much protection for political speech. The Supreme Court should uphold the soft money ban, but should protect political associations from being muzzled by well-intentioned reformers.

St. Louis Post-Dispatch