Law again inhibiting First Amendment rights

Feb. 12, 2008

Copyright © Las Vegas Review-Journal

EDITORIAL: Campaign finance follies

David N. Bossie was a relentless investigator of the Clintons during the 1990s. More recently, he's been inspired by the example of leftist filmmaker Michael Moore.

"I saw the impact Moore was having. I realized the long-form documentary could be a powerful tool to deliver a political message," Mr. Bossie told the Los Angeles Times.

So Mr. Bossie has now released a 90-minute documentary on one of his favorite targets, the junior senator from New York. "Hillary: The Movie" features interviews with Clinton critics including Ann Coulter, Newt Gingrich and Dick Morris. "If you want to hear about the Clinton scandals of the past and present, you have it here!" proclaims the Web site of Bossie's group, Citizens United.

Given America's tradition of -- and constitutional guarantee concerning -- free political speech, even those who favor Ms. Clinton's candidacy can surely agree anyone who wants to learn about or see that movie should have a right to do so -- right?

Not exactly.

In its gorilla-like exertions to "get money out of our elections," one provision of the McCain-Feingold campaign finance reform law makes it illegal to use corporate or union money for "any broadcast, cable or satellite communication" if it "refers to a clearly identified candidate for federal office" within 30 days of a primary election or a convention or within 60 days of a general election.

That stipulated "blackout period," as it is known, has covered much of the nation for the past month due to the modern proliferation of presidential primaries.

The 2002 law -- sponsored by the current front-runner for the Republican presidential nomination, Arizona Sen. John McCain -- covers nonprofit corporations as well as moneymaking firms. And its provisions are triggered by the mere mention of the candidate's name.

But, "How can you advertise this movie without mentioning the name 'Hillary'?" asks James Bopp Jr., a First Amendment lawyer representing Citizens United.

In December, the group went to court seeking an order that would shield it from the law so it could run 30-second ads for the movie on Fox News and other television outlets. Mr. Bopp argued that what he termed "core political speech" deserved full free-speech protection under the First Amendment.

The high court has whittled down some of the provisions of McCain-Feingold -- ruling 5-4 last year, for instance, that Wisconsin Right to Life Committee could broadcast radio ads urging its senators to support President Bush's judicial nominees. "The First Amendment requires us to err on the side of protecting political speech rather than suppressing it," Chief Justice John Roberts wrote for the majority.

But the court has so far failed to toss out the regulatory scheme, entirely.

A three-judge appeals court panel gave Mr. Bossie's group a split decision on Jan. 15, ruling brief ads for the movie could be broadcast because "they proposed a commercial transaction -- buy the DVD of the movie," but that the film itself cannot be broadcast on television because it's in essence a campaign ad, telling "the electorate that Sen. Clinton is unfit for office ... and that viewers should vote against her." (Oh, the horror.)

But even brief ads for the DVD are still subject to the law, the appeals court ruled -- Citizens United must disclose who donated money to support the film.

And that's a provision the group has refused to accept.

Actually, disclosure is not a bad idea. It's true many of the founding fathers wrote anonymously -- the Federalist Papers come to mind. But it's useful for voters to know who's financing a political campaign.

Nonetheless, any attempt to "balance" such goals against the constitutional right to criticize our politicians and would-be office-holders must come down on the side of free speech.

If Ms. Clinton's supporters -- or Mr. Bush's -- find such "documentaries" to contain partial truths and scurrilous charges, the answer is more speech, not a government muzzle to protect the powerful from scrutiny.

Some will see irony in the fact that a more widespread airing of "Hillary: The Movie" could help the electoral chances of Sen. McCain, who co-authored the bill that's keeping the Hillary "hit piece" off the air.

In fact, the pathos here goes beyond such minor poetic justice. The problem for smaller-government conservatives now is that McCain-Feingold is only one instance in which their likely standard-bearer, John McCain, has compromised limited-government principles, employing the mailed fist of government in a misguided attempt to "fix" a perceived problem resulting from "too much freedom."

It doesn't matter whose ox is being gored. McCain-Feingold is substantially unconstitutional and should be tossed out on its ear.

As Bradley A. Smith, a former FEC chairman and critic of the campaign laws, told the Times this week: "This shows the danger of trying to regulate all these things. Do we really want to go down the road of having a federal agency decide whether you can broadcast ads for a movie or a book?"