TCS Daily

The War on Speech

By Ryan H. Sager - February 10, 2005 12:00 AM

The war on free speech continues in Congress. The crew that did its darndest to repeal the First Amendment back in 2002 -- Sens. John McCain and Russ Feingold and Reps. Chris Shays and Marty Meehan is back, and now its looking to clean up the mess left by the Bipartisan Campaign Finance Reform Act.

That mess: insidious "527" groups, like MoveOn.orgs Media Fund and the Swift Boat Veterans for Truth, of course.


The problem, it seems, is that there are still just too darn many independent groups allowed to go shooting their mouths off about any darn thing any darn time they want -- and they can accept pretty much any amount of money from pretty much anyone.


There should be a law.


And there will be, since free-speech looks to have no defenders left in Congress. In 2002 some conservative stalwarts --people who believed that money and speech couldn't be distinguished, since it takes money to make speech heard -- tried to hold out against the McCain-Feingold mania to get money out of politics.


But this time there are far fewer brave souls.


Last week, a bill was introduced in the Senate that would force 527s to register with the Federal Election Commission and restrict the groups' ability to raise and spend money.


The bill enjoys the support of Trent Lott, who had been one of 41 senators to vote against McCain-Feingold. Now, however, he's decided that any money given by wealthy individuals is "sewer money."


And why is this money so dirty suddenly?


"It was an unintended consequence of McCain-Feingold. Instead of going to the parties, rich people are putting money into these 527s in the dark of night," Lott told the Sun Herald in Biloxi, Miss.


In other words, some of those rich people might be trying to throw out incumbents.


McCain is even more blatant about the incumbent-protection angle. As The Washington Times reported last week, "McCain said lawmakers should support the bill out of self-interest, because it would prevent a rich activist from trying to defeat an incumbent by directing money into a political race through a 527 organization."


"That should alarm every federally elected member of Congress," McCain said.


Indeed, it certainly does.


In the House, Bob Ney, an Ohio Republican and chairman of the House Administration committee, who opposed campaign-finance reform in 2002, also seems ready to roll over.


The magic trick that reformers have managed to perform here is really something to behold. They've turned citizens into numbers.


A 527 is nothing more than a group of Americans who have banded together -- 5 of them, 27 of them, 527 of them or 10,000 of them to criticize their elected leaders, or candidates for office, and to share the costs of doing so.


But by calling these people by a number, they can be made to sound shadowy and devious.


The speech 527 groups engage in is fundamental to the First Amendment, yet it is exactly this speech -- not the influence behind it -- that is being targeted by Congress. So much for "Congress shall make no law"


527s already are barred from engaging in "express advocacy," urging the election or defeat of one candidate or another. Furthermore, the groups are banned from coordinating with candidates.


So where is there any possibility of corruption?


The fact is that there is no threat of corruption -- which is supposed to be the fundamental motivating logic behind all of our campaign-finance laws -- from any of these organizations.


But having already moved from fighting corruption to fighting the appearance of corruption, now our campaign-finance laws are being tailored to the goal that all groups that might effect the outcome of a national election must be on an equal footing with one and other.


It's a self-perpetuating logic that will have no end.


For now, Congress is only attacking 527s. But it won't be long before every other type of non-profit group that does work related to politics comes under the gun.


America's experiment with campaign-finance reform should never have been started. And now there may be no way to stop it. President Bush passed up his opportunity to stop it back in 2002 -- though he admitted at the time he thought the law was unconstitutional. The Supreme Court, in turn, punted on the issue and let an atrocity against our Constitution stand.


Worst of all, Congress will never have any incentive to set things right Given the tools to protect themselves, its members have precious little reason ever to cede any ground to those rambunctious democratic forces who have the temerity to wish to criticize them.


All that can be hoped is that a newly constituted Supreme Court -- perhaps, dare one dream, headed by Chief Justice Scalia -- will make an abrupt U-turn.


Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at



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