calling for restrictions on political speech?
Aaron Swartz points to this press conference:
Q There’s a new ad by MoveOn.org that talks about — that criticizes Bush’s record in the National Guard. What’s your response to that, and what do you say to Harkin, who called Cheney a coward for not serving?
MR. McCLELLAN: We have been on the receiving end of more than $62 million in negative political attacks from these shadowy groups that are funded by unregulated soft money. And the President has condemned all of the ads and activity going on by these shadowy groups. We’ve called on Senator Kerry to join us and call for an end to all of this unregulated soft money activity. And so we continue to call on him to join us in condemning all these ads and calling for an end to all of this activity. . . .
Q But, Scott, the MoveOn.org ad, back to that. Senator Kerry denounced the ad specifically, saying it’s not indicative of their — the way they feel about the Bush service in the National Guard. He specifically denounced the ad, which is something that they’re saying the Bush-Cheney campaign has not specifically done about the Swift Boats ad.
MR. McCLELLAN: Let’s be clear here. What the senator did was, he said one thing at the same time his campaign was doing another. His campaign went out there and essentially promoted this false negative attack at the same time Senator Kerry was saying he condemned it. The President has condemned all of this kind of activity, and he should join us in doing the same and calling for an end to all of it. Apparently he was against soft money before he was for it. And the President thought he got rid of all of this unregulated soft money activity when he signed the bipartisan campaign finance reforms into law. And so it’s another example of — the senator’s latest comments are another example of him saying one thing and doing another.
I certainly hope that the Administration is not indeed calling for “an end” — a legal end, via an extension to the Bipartisan Campaign Reform Act — to people pooling resources to express their political views, including their views about candidates. You can call it “soft money,” but it’s speech, of the sort that political movements such as the antislavery movement, the temperance movement, the civil rights movement, and many other movements (good and bad) have engaged in. Without such speech, who gets to speak effectively, in the large traditional media? The media itself; the parties; and the politicians who have the infrastructure to raise hard money in $2000 chunks; and a few super-rich people (unless they’re shut up, too). People who care deeply about a subject, enough to pool even tens of thousands of their dollars with others who care equally strongly, would be shut out.
This sort of speech doesn’t involve campaign contributions to officeholders, which Buckley v. Valeo has held can be restricted (in part precisely because such restrictions leave open alternative channels, such as independent expenditures). It isn’t even corporate expenditures, which Austin v. Michigan Chamber of Commerce and McConnell v. FEC held — wrongly, I think — to be restrictable. This is independent spending on political expression, which Buckley specifically held was constitutionally protected, by a 7-1 vote that include liberals, moderates, and conservatives in the majority (the only dissenter was Justice White). I certainly hope that McClellan’s views don’t represent the policy agenda of the White House. (For a more detailed argument on why such speech should be protected, see here.)
UPDATE: Unfortunately, President Bush seems to be taking the same view:
G. BUSH: Well, I say they ought to get rid of all those 527s, independent expenditures that have flooded the airwaves.
There have been millions of dollars spent up until this point in time. I signed a law that I thought would get rid of those, and I called on the senator to — let’s just get anybody who feels like they got to run to not do so.
KING: Do you condemn the statements made about his…
G. BUSH: Well, I haven’t seen the ad, but what I do condemn is these unregulated, soft-money expenditures by very wealthy people, and they’ve said some bad things about me. I guess they’re saying bad things about him. And what I think we ought to do is not have them on the air. I think there ought to be full disclosure. The campaign funding law I signed I thought was going to get rid of that. But evidently the Federal Election Commission had a different view.
A reader suggested, in response to the original post, that maybe McClellan was calling for “an end” simply in the sense of urging people not to do this sort of thing. But the references to thinking that BCRA would have gotten rid of such speech strongly suggest that “an end” means a legally mandated end. Bad stuff.
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