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June 27, 2007

Striking a Blow for Free Speech

Kevin E. Dayhoff

Many are singing high praise of the Supreme Court's decision handed down Monday which took a bite out of the McCain-Feingold campaign finance reform law.

The ruling has been applauded by the unusual alliance of powerful unions, big business, and the U.S. Chamber of Commerce.

The court decided in "Federal Election Commission v. Wisconsin Right to Life" and "McCain v. Wisconsin Right to Life," that restrictions on issue ads run by "special interests" in the waning days before an election are an unconstitutional infringement on free speech.

Initial analysis indicates that the decision will have an impact on the 2008 elections.

At stake is what information will be available for the voters' consideration in what is shaping-up to be a presidential election of historic proportions.

To recap: the highly touted campaign finance reforms passed into law November 6, 2002, the "Bipartisan Campaign Reform Act of 2002," known as McCain-Feingold, accomplished many overdue campaign reforms, including banning "soft money."

Soft money rose to a total of nearly $450 million in the 2000 elections from approximately $240 million in 1996. It is a term coined for campaign contributions not given to individual candidates but to political parties or to special interest groups formed for the advocacy of a specific issue, thereby circumventing election laws which addressed caps on donations to a particular candidate.

This provision was challenged quickly by such unlikely partners as the National Rifle Association and the California Democratic Party.

The opposition was pushed by Kentucky Republican Senator Mitch McConnell, then-Senate Majority Whip, who had vigorously opposed the legislation since it was first introduced in September 1995.

In "Addison Mitchell McConnell v. Federal Election Commission," the Supreme Court ruled in December 2003 that political speech was not protected by the First Amendment and that money used to finance political speech could be regulated by Congress because money is property and cannot be considered a part of - or a manifestation of - "free speech."

The dust from this ruling may never be settled as the 5-4 decision was contained in a ruling of approximately 300 pages that has left legal scholars debating in sheer confusion ever since.

Nevertheless, the ingenuity of American politics quickly found a solution with the advent of "527s." These are organizations which include the "Swift Boat Veterans for Truth," which claimed a tax-exempt status under Section 527 of the IRS Code. 527s have so far avoided regulation by finance contribution limitations and disclosure requirements.

Another provisions of McCain-Feingold remained to be addressed: the provision that placed restrictions on "electioneering communication," the legalese for "issue ads" within 30 days of a primary or within 60 days of a general election.

These ads are usually very careful to avoid telling voter to vote for or against a particular candidate. Fueled with huge pools of cash, these ads have had a pronounced affect on the election process. Though frequently criticized, the ads often capitalize on narrow aspects of a candidate's position in a manner that misrepresent the candidate's view, or prey upon voters sensitive to single issues.

The rub for some, who understand that true free speech is a double-edged sword, was articulated by Chief Justice John G. Roberts, Jr., who wrote for the majority that McCain-Feingold unconstitutionally infringed upon the freedom of speech to use a candidate's name in the waning days of an election.

Chief Justice Roberts wrote in part: "Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

With this portion of the McCain-Feingold restrictions lifted and "527s" running at full force, a reflection on the promises made during the fall 2006 elections are sure to be brought to the forefront with "issue-based" ads promoted by special interests with a particular axe to grind.

Conventional wisdom declares that Democrats will bear the brunt of the attack ads as Republicans are sure to remind voters, "I told ya so."

In the fall 2006 elections Democrats promised Americans that a vote for Democrats will be a vote to end the war in Iraq, bring about broad, sweeping ethic reforms, an end to secretive pork barrel spending, reducing the price of prescription medication, raising the minimum wage, raising taxes on the wealthy and promoting stem cell research.

And the Democrats, under the leadership of Senate Majority Leader Harry Reid (NV) and Speaker of the House Nancy Pelosi (CA), said that they were going to do all of this within the first 100 hours.

Instead, to obviously a large majority of Americans, after six months have passed, it only seems like business as usual on Capitol Hill.

Just last Friday, political commentator Rich Galen wrote in his column, "A Lack of Confidence:" "The level of confidence in the U.S. Congress, according to a Gallup Poll, has dropped to 14%."

Other published accounts indicate that Speaker of the House Pelosi has only a 36 percent approval rating compared to 46 percent for Speaker Newt Gingrich at a similar moment after the Republicans retook control of Congress in 1994.

To be certain, the 2008 election is looking like the American voter may be in a mood to "throw all the bums out."

With that scenario, look for Monday's Supreme Court decision to play a heightened role in what information a typical voter receives about the various candidates.

More often than not, free speech can make things ugly; but one thing is for sure, unappealing or not, protecting free speech is ultimately prettier than government sponsored censorship.

The 2008 election campaign may already be historically long and expensive. Now it may also run for the honors of being the most distasteful.

Kevin Dayhoff writes from Westminster: E-mail him at:

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