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Monday, October 29, 2007

Amending the Constitution to limit free speech

Steve Chapman reports on a bipartisan effort by some senators to get around those pesky First Amendment restrictions that prevent Congress from completely limiting political speech during election campaigns. While the Supreme Court has allowed the restrictiongs in the 2002 Bipartisan Campaign Reform Act and the election reforms from the early 1970s, there are some exceptions to protect the political speech that our Founding Fathers were so desirous of protecting that they held up the ratification of the Constitution until the Federalists promised to add those rights.
But the critics were vindicated when the Supreme Court ruled that, under the First Amendment, candidates are free both to spend as much as they choose and to contribute unlimited amounts to their own campaigns. It also said citizens have the right to spend as much as they choose to spread their own views about candidates.

"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution," the court held. "A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."

Subsequent measures have foundered on the same rocks. The 2002 McCain-Feingold law made it illegal to use corporate funds for radio or TV spots that even mention a candidate for federal office within 60 days of an election. This year, though, the court said that unless such commercials are clearly campaign ads in disguise, they may not be banned. When the purpose of a message is in question, wrote Chief Justice John Roberts, "we give the benefit of doubt to speech, not censorship."
So now some senators have decided that if the Constitution is a barrier to limiting that political speech, they might as well just amend the Constitution.
Not Schumer and Harkin, who are joined in their crusade by Republican Sens. Arlen Specter of Pennsylvania and Thad Cochran of Mississippi. The amendment would give Congress complete authority to regulate "the raising and spending of money, including the setting of limits," for any federal campaign.

The most obvious travesty is that the amendment would repeal the First Amendment as it relates to campaign finance. This would be the first time in our history that we altered the Constitution to curtail liberties protected by the Bill of Rights.
Of course such restrictions would redound to help incumbents who have all the benefits of name recognition and now wouldn't have to fear a millionaire challenger who could self-fund a campaign or a challenger who could benefit from the help of outside groups who want to run ads criticizing a position that the incumbent has taken. For shame on these senators. I'd like to think that they wouldn't be able to get 2/3 of both houses of the Congress to vote for such an amendment, but in preservation of their own incumbencies, I have no confidence in how these guys would vote or what rights they would seek to limit.

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