Jewish World Review Dec. 16, 2003 / 21 Kislev 5764

Paul Greenberg

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Bad day for the First Amendment | Here's the good, the bad and the just plain awful about Wednesday's decision out of the Supreme Court of the United States, which now has upheld the country's new campaign finance law and gag rule.

First, the good. The court recognized the common-sense reality of American politics by agreeing that unlimited contributions to the political parties can open the way to unlimited corruption.

The court didn't swallow those abstract arguments about how politicians have every right to collect all the money they can from the big givers. Nor did it recognize some inalienable right on the part of those big givers to be sucked dry. The court understood very well the essential, bare-knuckled truth about what has been going on: The contributors are buying access to the politicians, and the politicians are selling it.

Anybody who thinks different must believe, contrary to Mr. Dooley, that politics is beanbag. It ain't. The five justices in the majority know it's become something closer to an auction. Or maybe a form of political blackmail. To quote their realistic majority opinion:

"Particularly telling is the fact that in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology . . . ."

In short, those big givers were just betting across the board, which is the safest way to play this game at the high-stakes level.

As for the bad part of this decision, it's not just bad but awful. For the first time, Americans have been told that they may not voice a political opinion over the airwaves within 30 days of an election - just when, of course, they may most need to, and should want to.

The clearest thinker on what is otherwise a pretty mush-minded court, Antonin J. Scalia, pointed out that this decision "cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

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Which, of course, is exactly what John McCain, Russ Finegold and all the other reformers, i.e., incumbents set out to do when they framed this legislation. They were mighty tired of having to put up with a lot of last-minute criticism from all those irritating little people - the Sierra Club, Right-to-Life, National Rifle Association, you know the type - who insist on being heard, as if they're American citizens or somebody.

And now the court has let the most powerful of American interest groups - incumbent politicians - have their way with the First Amendment. Wednesday's message to the mere people was clear: Shut up, the court explained.

Once upon a better time, the Supreme Court of the United States recognized that it was particularly important that the people be able to criticize their government just before an election. So it struck down an impertinent law that made it a crime to run an editorial about an election the morning the polls opened. Back then, the court understood that just before an election was the best time for people to speak out. This court thinks that's the best time to gag Americans.
Once again an issue of essential justice and great importance has been decided by the narrowest of majorities. The one swing vote on the court has proved decisive; more and more we live under a government of, by and for Sandra Day O'Connor.

But the worst part of Wednesday's decision is it may prove only a prelude to further evisceration of the First Amendment, for once the principle has been established that incumbents can shut the rest of us up for 30 critical days before an election, there may be no stopping the censors.

Ah, well, there's no court decision so bad that it doesn't do somebody some good. I confess my conflict of interest in this matter: Maybe a gag order on radio and television ads will bring back all those political ads that used to appear in newspapers just before an election! They're mighty effective, and profitable, but I wish the court hadn't promoted them at the expense of the First Amendment.

No doubt the big contributors will find ways other than broadcast ads to influence elections - even Justice O'Connor recognized that money in politics, like water, will somehow seep through - but the First Amendment may never be the same. To quote Justice and Prophet Scalia again, "We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy."

The confusion is to be continued. That's what happens when no great principle is propounded, no clear lines of demarcation drawn - not even the long accepted distinction between commercial speech, which may be regulated, and political speech, which should not be. But now is. The only discernible standard respected by the majority was Congress' comfort zone.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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