THE CAMPAIGN-FINANCE SCANDALS of Bill Clinton's 1996 reelection left a bitter aftertaste. Having secured his reelection, Clinton resorted to the favorite stratagem of presidents in need of political cover--the appointment of a bipartisan commission. The bipartisan commission was to study the reform of campaign finance law. To conservatives, the appointment of a bipartisan commission was a non sequitur. The 1996 scandals were scandals because they involved violations of existing law. Nevertheless, talking about the need for campaign-finance reform helped President Clinton to change the subject. On March 17, 1997, Clinton announced the appointment of former Vice President Walter Mondale to co-chair (with Nancy Kassebaum-Baker) an independent commission to promote campaign finance reform.
Mondale's experience analyzing campaign-finance law extended back to his student days at the University of Minnesota Law School, where he wrote an astute law review note criticizing Minnesota's campaign-finance law and advocating deregulation. As a Minnesota senator, however, Mondale had supported the complex system of federal campaign-finance law that essentially derived from the Federal Election Campaign Act law of 1971 (FECA) and the Watergate-era amendments of 1974. In the White House ceremony announcing the appointment of the new Clinton commission, Mondale referred to the "nightmare of the present campaign-finance system." No one noted that the "reforms" Mondale himself had supported as a senator had become the "nightmare" he described in 1997.
The problems identified by Clinton's bipartisan commission ultimately contributed to the adoption of the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law). Mondale expressed his support in an op-ed for the Minneapolis Star Tribune. Congress itself emphasized the increased importance of unregulated "soft money," the proliferation of "issue ads" by nonparty groups, and the findings of a 1998 Senate report on the 1996 election as the impetus for adopting McCain-Feingold.
LAST FALL, U.S. District Judge Colleen Kollar-Kotelly overturned the Federal Election Commission's exclusion of the Internet from many of the regulations written to implement McCain-Feingold. The commission's Democratic commissioners voted against taking an appeal, preventing the main body of the commission from seeking a review of Judge Kollar-Kottelly's decision. In an interview earlier this month, Federal Election Commissioner Bradley Smith ignited a digital firestorm by warning that political blogs may be subject to regulations to be promulgated by the FEC as a result of this new ruling.
COMMISSIONER SMITH has rightly identified a significant issue. Although Congress has magnanimously included a "press exemption" to some of the activity that would otherwise trigger complicated regulatory requirements under federal election law, it is not clear in this context whether the "press exemption" includes blogs or Internet news services. See, for example, Federal Election Commission Advisory Opinion Number 2003-34 discussing the press exemption, and "Should the FEC regulate political blogging?" by Richard Hasen, a professor specializing in election law.
Even if the McCain-Feingold law and the "press exemption" are unclear on the extent of their application, wouldn't the First Amendment protect freedom of speech on the Internet? The Supreme Court's modern First Amendment jurisprudence has afforded Constitutional protection to such vital speech as nude dancing, flag burning, simulated online child pornography, and sexually explicit cable programming. Surely the First Amendment protects the rights of bloggers to express themselves on the Internet as they see fit in connection with elections to federal office?
The First Amendment itself speaks to the point with great clarity: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . " And there is no gainsaying that the core purpose of the First Amendment is the protection of political speech. Yet the Supreme Court has beat a remarkable retreat in the face of the congressional onslaught on political speech in the name of campaign-finance reform. In its decision affirming the constitutionality of the basic provisions of the McCain-Feingold bill, the Supreme Court has already demonstrated that it cannot be counted on to protect the right of free speech in the context of campaign-finance law. In affirming the constitutionality of the McCain-Feingold bill's key provisions, the court cut Congress substantial slack to regulate otherwise protected speech in the name of "preventing corruption or the appearance of corruption."
Can the Federal Election Commission be counted on to exercise the kind of regulatory restraint regarding political speech on the Internet that will prevent a First Amendment issue from arising? Whether or not it can, a free people should not have to look to the discretion of regulators for the protection of their rights. How is it that we have we come to this pass?
EVERY REFORM implies an ideal state or condition to which the reformer aspires. The ideal embedded in the First Amendment is that of unrestrained speech keyed to the constitutional system of self-government. What is the ideal state suggested by the logic of campaign-finance reform? Perhaps the most revealing passage in the hundreds of pages generated by the Supreme Court justices in their opinions on McCain-Feingold comes in Justice Scalia's dissent. Scalia notes the usual good-government rhetoric regarding "the prevention of corruption or the appearance of corruption" in which campaign-finance reform always comes wrapped. He also takes a look under the wrapping:
[L]et us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand-how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521--20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal . . . . We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606--S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them . . . . [By passing the legislation], [w]e could get some of this poison politics off television").
Here Scalia hits the mother lode: He discovers that, in one sense, incumbent officeholders tend to have a profound disdain for politics. The ideal of incumbent officeholders promoting campaign-finance reform is freedom from criticism, especially at election time. Indeed, these incumbent officeholders seem to view elections as an inconvenience to their exercise of power.
But what about the enablers of these incumbent officeholders among the good-government types always searching for the "loopholes" that must be closed to keep the natives from making their restlessness apparent? Their ideal is embodied in the Federal Election Commission, the regulatory body implementing law that now rivals the Internal Revenue Code in its complexity. For them, bureaucratic administration is far preferable to the rough and tumble of democratic political life.
The natives, you know, can be so uncouth.
Scott Johnson is a contributor to the blog Power Line and a contributing writer to The Daily Standard.