by William Maurer

A recent Washington Post editorial that criticized opponents of the McCain-Feingold campaign finance law revealed the sad state of First Amendment freedoms today. The editorial discussed whether that law interferes with the free speech and free association rights of nonprofit groups. Such groups are affected only if they accept corporate or union money, the newspaper explained. They remain free to run ads as long as they dont mention a candidate for federal office by name, and they can run whatever ads they want as long as they pay for them through political action committee funds.
The First Amendment says, Congress shall make no law abridging the freedom of speech, or of the press. There is no list of as long as clauses attached to it. The Founders did not condition the exercise of this precious right on the government letting people speak. As former U.S. Supreme Court Justice Hugo Black explained, No law means no law.
Unfortunately, campaign finance reforms have gradually eroded our freedom of speech to the point where a major national newspaper could say, and honestly believe, that citizens are free to speak as long as they stay within government-mandated limits. Speech is not free when the government sets rules restricting what people can say and when they can say it. Yet we have permitted the government to construct an intricate latticework of laws that do precisely that.
Campaign finance laws mean that no one may participate in the political process without first hiring lawyers to guide them through the mass of federal, state and local rules regulating political activity. When these laws dont take the money out of politics, the government seeks new ways to close loopholes, which is what campaign finance zealots call anything that permits citizens to exercise their rights free from government regulation. To combat the possibility that citizens may speak outside of government-accepted norms, the government passes new laws or expansively interprets existing laws.
For instance, in Colorado, a group of citizens who put up yard signs opposing the annexation of their neighborhood into a neighboring town were prosecuted because they had failed to register as a political committee under Colorados campaign finance laws.
The owners of a newspaper in Florida were investigated for being too one-sided in their coverage of elections and election issues. Also in Colorado, the state is prosecuting a think-tank for providing citizens with information about the costs of an initiative. And in Washington, the government prosecuted the sponsors of an initiative that challenged a gas tax increase for failing to report the favorable media coverage they received as a campaign contribution.
Each of these examples has resulted in litigation regarding the constitutionality of the governments actions. Fortunately, in Washington, the state supreme court ruled that the government stretched campaign finance laws too far and the U.S. Supreme Court recently reined in one of the worst provisions of McCain-Feingold. Even if the government ultimately fails to regulate political conduct, however, hauling citizens into court for speaking about politics does serious harm to First Amendment freedoms.
When our elected leaders ignore our rights, both courts and citizens must step up to protect them and check government power. The decisions by the Washington and U.S. Supreme Courts are important steps in the right direction, but we have a long way to go to undo the years of damage done to the First Amendment. Perhaps, if these efforts fail, free speech advocates should promote a new amendment to the Constitution with the exact wording of the First Amendment repeated, but adding the phrase, and this time we mean it.

William Maurer is an adjunct scholar of the Washington Policy Center and director of the Washington Chapter of the Institute for Justice. Washington Policy Center is an independent, non-profit 501(c)(3) research and education organization. Nothing in this document should be construed as any attempt to aid or hinder any legislation before any legislative body. Contact Washington Policy Center at 206-937-9691 or washingtonpolicy.org.