Free speech limits threaten civic discourse


WASHINGTON -- Almost nothing that preoccupies Washington is as important as Washington thinks almost all its preoccupations are. But now Congress is considering some version of the McCain-Feingold bill, which raises "regime-level" questions.

It would continue the change for the worse of American governance. And Washington's political class hopes the bill's real importance will be underestimated.

With a moralism disproportionate to the merits of their cause, members of that class -- including the exhorting, collaborative media -- are mounting an unprecedentedly sweeping attack on freedom of expression.

Nothing in American history -- not the left's recent campus "speech codes," not the right's depredations during 1950s McCarthyism or the 1920s "red scare," not the Alien and Sedition Acts of the 1790s -- matches the menace to the First Amendment posed by campaign "reforms" advancing under the protective coloration of political hygiene.

Passing passions

Such earlier fevers were evanescent, leaving no institutional embodiments when particular passions abated. And they targeted speech of particular political content. What today's campaign reformers desire is a steadily thickening clot of laws and an enforcing bureaucracy to control both the quantity and the content of all discourse pertinent to politics.

By the logic of their aims, reformers cannot stop short of that. This is so, regardless of the supposed modesty of the measure Congress is debating.

Reformers first empowered government to regulate "hard" money -- that given to particular candidates. But there remains the "problem" of "soft" money -- that given to parties for general political organizing and advocacy.

Reformers call this a "loophole." Reformers use that word to stigmatize any silence of the law that allows unregulated political expression. So now reformers want to ban "soft" money. But the political class will not stop there.

Its patience is sorely tried by the insufferable public, which persists in exercising its First Amendment right of association to organize in groups as different as the Sierra Club and the National Rifle Association.

One reason people so organize is to collectively exercise their First Amendment right of free speech pertinent to politics.

Therefore, reformers want to arm the speech police with additional powers to ration the permissible amount of "express advocacy," meaning speech by independent groups that advocates the election or defeat of an identifiable candidate.

But the political class will not stop there. Consider mere issue advocacy -- say, a television commercial endorsing abortion rights, mentioning no candidate and not mentioning voting but broadcast in the context of a campaign in which two candidates differ about abortion rights. Such communications can influence the thinking of voters.

Can't have that, other than on a short leash held by the government's speech police. So restriction of hard money begets restriction of soft, which begets restriction of express advocacy, which begets regulation of issue advocacy and, effectively, of all civic discourse.

The political class is not sliding reluctantly down a slippery slope, it is eagerly skiing down it, extending its regulation of political speech in order to make its life less stressful and more secure. Thus is the First Amendment nibbled away, like an artichoke devoured leaf by leaf.

This is an example of what has been called "the Latin Americanization" of American law -- the proliferation of increasingly rococo laws in attempts to enforce fundamentally flawed laws. Reformers produce such laws from the bleak, paternalistic premise that unfettered participation in politics by means of financial support of political speech is a "problem" that must be "solved."

One reason the media are complacent about such restrictions on (others') political speech is that restrictions enhance the power of the media as the filters of political speech, and as unregulated participants in a shrunken national conversation.

Editorial stand

Has the newspaper in which this column is appearing ever editorialized to the effect that restrictions on political money -- restrictions on the ability to buy broadcast time and print space and other things the Supreme Court calls "the indispensable conditions for meaningful communication" -- do not restrict speech? If this newspaper ever does, ask the editors if they would accept revising the First Amendment to read:

"Congress shall make no law abridging the freedom of the press, but Congress can restrict the amount a newspaper may spend on editorial writers, reporters and newsprint."

As Sen. Mitch McConnell, the Kentucky Republican, and others filibuster to block enlargement of the federal speech-rationing machinery, theirs is arguably the most important filibuster in American history.

Its importance will be attested by the obloquies they will receive from the herd of independent minds eager to empower the political class to extend controls over speech about itself.

George F. Will is a syndicated columnist.

Pub Date: 9/29/97

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