Wednesday, August 25, 2004

McCain-Feingold: The End of Political Free Speech and the Erosion of the Rule of Law

Of all of the types of speech implicated by the first amendment, political speech has always been deemed the most important. Our right to criticize the government, to call into question the policies, actions, and even character of our leaders, incumbent candidates, and political challengers ought to be the most cherished part of the freedoms that the first amendment attempts to protect. Even if Madison’s initial opposition to the bill of rights had been successful, freedom of political speech would still be implicit in the structures of our government as laid out in the constitution, structures that, in the absence of free speech, could not properly function.

But now the warning of Justice Scalia in his McConnell dissent has been proven all too true: in our zealousness to achieve equality and fairness on playing field of politics, we have dealt serious blows to that most critical institution, our freedom to criticize our government. We have allowed those in office, those who have the most vested, parochial interest in regulating the course of our political discourse, to shape and limit it. And, as Scalia also points out, now that the Court has announced that preventing circumvention of campaign finance laws is a valid justification for promulgating new, more restrictive campaign finance laws, no logical principle remains to prevent Congress from regulating political free speech into total oblivion.

That government may not mute or muffle the voice of one so as to allow another to be heard has always been a primary principle of the first amendment. Liberty is the end, not equality. Liberty, a substantive value respecting the dignity and autonomy of man, as opposed to equality, a mere measurement or comparison that cannot justify anything without reference to some other value, has always been the core of first amendment jurisprudence. Just as it would be ludicrous to put irons on the athlete born naturally quick in order to foster equality, just as it would be ridiculous to limit the speeches of those born eloquent, it is equally abhorrent when the government attempts to limit the amount of money an individual may spend on communicating his political message such that others with less resources may be heard.

But this is where we are. Money is not speech, said the Supreme Court in McConnell, and therefore it may be regulated. But, as Justice Scalia pointed out, how is saying that money is not speech any different from saying that paper is not speech, and then passing an act that all paper must bear a stamp indicating that tax has been payed? How is saying that money is not speech any different from saying that book binding and publishing is not speech, and then regulating who may and may not bind and publish books? There is no difference.

The idiotic complexity of our campaign finance law, born of the reality that we cannot remove money from politics without stifling political speech entirely but attempting to do just that anyway, is so monstrous that we are at the point where no citizen can truly know if the expenditures he makes to voice his opinion are legal or not. Reference to the law is no help without the aid of a team of expensive attorneys. And so a system of laws so incoherent and dense as to at least temporarily befuddle even the most astute lawyer has become a political tool, a weapon wielded only by those with huge resources, to force the political discourse in the direction the person with the best lawyers and advisers hopes to move it. Aristotle had a name for such a regime: Not democracy, but oligarchy.

An oligarchy of the lawyers and the wealthy, of the Kerrys and the Edwardses, of the sophists. When citizens were free to spend their money on expressing their opinions, to pool it as they see fit in the forms they so desired, we were virtually guaranteed that there would be wealthy contributors on all sides of every issue -- if there were not, perhaps that said something about the argument being made. Thus, a certain natural equality was born of that liberty of political expression. Now, I am hard pressed even to tell my mother whether she may distribute a leaflet to churchgoers mentioning a candidate for federal office with impunity, and to the extent I can, it is only because I am trained in the law already. Now, John Kerry can make wild claims that the President is violating campaign finance laws, and the average citizen has no way of checking the veracity of Kerry’s assertion -- the campaign finance laws might as well be written in ancient Etruscan. And Kerry depends on that forced ignorance of the law to garner support and demonize the President.

The rule of law, that eminent principle which we so cherish because it secures for us our liberty, is undermined when the demos cannot understand the law. Freedom is in name only when the laws that govern us are unknowable to us. When that unknowable law is one governing our political speech, our very system is in jeopardy. We might as well be living under the hand of a dictator that punishes political speech by his will -- the difference between that and being punished for violating a law the average person has no means of understanding is frighteningly small.

We must reverse course, we must not be fooled into thinking that fairness and equality in political speech can justify putting irons on the eloquent and wealthy. If we do not, we may end up fighting for liberty and freedom abroad even as we let it slip away at home.

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