TCS Daily

Imprisoning Dissenters

By Christopher C. Hull - December 15, 2003 12:00 AM

A wealthy corporate titan undermines and criticizes a vast nation's president. The president grows ever more tired of the stinging dissent, and ultimately cracks down, jailing the offender and causing the nation's fragile stock market to crash.


Vladimir Putin repressing Yukos oil executive Mikhail Khodorkovsky? Yes, but this could also be President George Bush repressing wealthy tycoon George Soros -- who has made it known that he wants to defeat President Bush in 2004 -- in not so many years. All of this is thanks to a shameful decision last week by Sandra Day O'Connor and the U.S. Supreme Court.


Extreme? Absolutely. But the two cases bear comparison, not because Bush would ever do something like this, but because he could, thanks to the Court's justice-is-blind ratification of the Bipartisan Campaign Reform Act (BCRA) regulating free speech.


The BCRA hikes the maximum term of imprisonment from one to five years for the "knowing and willful" violation of federal election law, not to mention authorizing a quarter of a million dollar criminal fine.


And oh, how that federal election law has changed. BCRA creates a net of new regulations of "electioneering communication," defined to include any "broadcast, cable, or satellite communication" that refers to a candidate for federal office, falls within 60 days of an election or 30 days of a primary, and can be received by 50,000 or more people in the area represented by the candidate.


Woe to those who violate this law. George Soros, who has pledged $10 million to a single entity devoted to running ads and campaigning against President Bush, and perhaps more than double that in toto, will be testing BCRA's limits -- or at least his proxies will.


True, the Court gave an explicit pass to "527s," the shadowy organizations like the Soros-supported Americans Coming Together (ACT) currently raising money for the 2004 election. The Court wrote that those organizations "remain free to raise soft money to fund voter registration, [get-out-the-vote] activities, mailings, and broadcast advertising."


Yet a legal analysis by prominent D.C. law firm Skadden, Arps notes that the language of BCRA upheld by the court provides that "an incorporated tax-exempt organization, including Section 501(c)(4) organizations, and Section 527 political organizations may not make a targeted electioneering communication." The analysis also opines that "it appears that unincorporated tax-exempt organizations may make such communications as long as they comply with the reporting requirements...This approach has not yet been tested but is viable given the language of the Act." Broadly, BCRA also bans the use of corporate and union treasury funds for electioneering communications.


So anyone working for virtually any organization backing and opposing federal candidates had better watch what ads they put on TV at a time when voters are watching, or they could incur jail time. Though ignorance of the law is no excuse, some poor soul is likely to skip across a legal line in their operations -- and now they will bring down potential jail time on their heads.


However, punishments for speech under the existing law, however pernicious, are not nearly as frightening as the ones the Court now says Congress is able to impose. If Congress has the right to regulate political speech as a criminal activity just by invoking the corrupting influence of money, what is to stop it from staunching that speech from 527s next year -- and then Soros? Already prominent voices like GOP attorney Jan Baran are pointing out that a bill intended to take money out of politics has freed Soros and his fellow billionaires to pour money into the system while banning political parties (whose job it is to spend money on politics) from doing the same. That will drive the next go-round to "tighten" the system against the perception of corruption. And the Federal government has Supreme Court permission to broaden the circumstances under which it can imprison those who speak when not properly spoken to.


For legislators to hate attack ads against them is natural. However, those who wrote this law deserve to have scorn heaped upon them for such an obvious attempt to escape criticism of their policies.


Legislators also listened to editorial boards, the other voice screaming for this purported campaign finance reform. Of course, stamping out forms of "electioneering communication" other than newspaper editorials gives those papers' endorsements decidedly more power. And who owns those newspapers? Mostly (shudder) corporations.


But if legislators and ink-stained editors are complicit, the Supreme Court is explicit: its endorsing "the regulation of electioneering communication" is unforgivable. The quoted phrase comes from the Court's decision: "...we uphold BCRA's two principal, complementary features: the control of soft money and the regulation of electioneering communication." How can regulation of political speech stand a rational reading of the First Amendment, whose purpose was to protect political speech? It is difficult to tell. Only a justice willing to shrug at the text of the Constitution could find BCRA's criminal laws and strangulation of speech acceptable.


Granted, for some members of the court reading new meaning into the text of the Constitution is merely "Interpretivism," and has a long and august history. Its king, Justice William Brennan, defended it in this way: "Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance" in an address he called "Contemporary Ratification," delivered at Georgetown University in 1985. (Brennan neglects that the Constitution was amended -- and remains susceptible of amendment -- but let that pass.)


Following in his footsteps, Sandra Day O'Connor today plays the role of a legislator, not a justice, on the court. It must be remembered that she in fact was a legislator once -- the Senate Majority Leader of Arizona, in fact. Like Brennan, she is more culturally inclined to cutting deals that adapt overarching principles than to reading the actual strictures the Constitution contains. Unlike Brennan, however, O'Connor is unburdened by ideological rectitude, and appears to waft gently from position to position depending on the negotiations of the moment. The media calls this being a "swing vote."


Not only has O'Connor's majority potentially cleared the way for jailing political dissidents, but by once again spurning what the nation's founding document actually says, the Court is combining the legislative and the judicial powers - an increasingly common, and increasingly dangerous practice that when coupled with the executive power, the Founding Fathers believed, was the very definition of tyranny.


Which brings us back to Russia. When Putin imprisoned Khodorkovsky, he was trampling the rule of law, acting as legislator and judge as well as policeman. It caused enormous fallout in Russia's financial market, backing once again Adam Smith's prediction in the Wealth of Nations that a threat to republican government would cause Dutch merchants to "remove both their residence and their capital to some other country." (Smith also termed the politician an "insidious and crafty animal.")


Putin's precedent is the problem, though, not just the financial fallout. Last week, in a little noticed blurb, Mother Russia's crazed would-be dictator Vladimir Zhirinovsky, having just doubled his share of the vote in last Sunday's Duma elections, announced he was running for president. Think of that and read Ariel Cohen's recent piece on Russia's recent elections, which notes Zhirinovsky's call to halt discussion of Chechnya in the media, instead "using death squads to kill off entire Chechen villages."


And then consider just how far we want to go toward Putin's strategy of dealing with dissent.


Thankfully, we are still very far away from it. But our government has just taken us one strong, stealthy step closer.



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