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Jewish World Review April 1, 2002 / 19 Nisan, 5762

George Will

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'Reforming' Free Speech | "I won't hesitate," said President Bush, an irrepressible cut-up, even when playing with the Constitution. He was referring to signing the campaign finance reform bill, and he continued: "It will probably take about three seconds to get to the 'W,' I may hesitate on the period, and then rip through the 'Bush.' " Well, as has been said, safety depends on speed when you are skating on thin ice.

It does Bush credit, of sorts, that he signed the bill stealthily, in private, before 8 Wednesday morning, minutes before he skedaddled out of town, like someone one jump ahead of the sheriff. There was no signing ceremony. Bush's signing statement began tepidly, calling the bill "far from perfect," then limping to the conclusion that the bill "improves" the current system.

To Bush's credit -- sort of -- he does not believe that. At least he does not if he believes what he said in his March 15, 2001, statement of his reform principles.

Bush said reform should protect "the rights of citizen groups to engage in issue advocacy." But reformers trumpet their desire to impede such advocacy. Bush said reform should strengthen political parties. But he does not bother to dispute the fact that parties will be weakened by being deprived of soft money contributions. Bush said reform should not favor incumbents over challengers. But challengers often depend on help from the parties, which will now have fewer resources. Bush said any reform bill should have a "non-severability" provision, meaning that if any part of the bill is declared unconstitutional, the entire bill must fall. But there is no such clause, for good reason.

Just five years ago, 38 senators who supported reforms contained in McCain-Feingold voted to amend the First Amendment to empower Congress to abridge political speech. They believed, rightly, that the sort of restrictions the bill would place on political advocacy are incompatible with the free speech provision of the Bill of Rights. And they believed that the restrictions they favor are preferable to the First Amendment as Madison wrote it and as the Supreme Court has construed it.

Wednesday morning Bush demonstrated, with his signature, a determination to hoard his mountain of political capital for some fight more important than defense of free speech. Later on Wednesday he said, "I wouldn't have signed it if I was really unhappy with it." Which means, concerning those principles of March 15, 2001: Oh, never mind.

Most of the people who supported enactment of the law are unhappy with it. Many describe it as mere "first steps" (Common Cause) and "a modest beginning" (Sen. Russ Feingold). A modest beginning of what? Of steadily advancing constriction of political advocacy by private groups -- other than the news media.

The New York Times, in an editorial celebrating enactment, lamented this fact: "Hundreds of millions of dollars in campaign donations will still make their way into the system." How does the Times envision financing the thousands of campaigns in this continental democracy? Evidently, it envisions a system in which no private contributions are allowed.

In such a system, money to finance debate about the composition and conduct of government would come from the government, and in such amounts and for such uses as the government approves. There would be no restriction on political advocacy by the Times or The Washington Post, which in the past five years have editorialized, on average, every 5.5 days for new restrictions on political advocacy by others.

The day after Congress passed it, The Post's lead editorial celebrated the bill, which includes restrictions on political advocacy by such organizations as the National Rifle Association, which has 4.2 million members. Indeed, a number of senators and members of Congress cited the NRA as an organization whose advocacy they sought to inhibit.

Below the editorial celebrating passage of the bill, The Post ran an editorial urging Virginia's governor to support a gun control measure opposed by the NRA. So The Post editorial page that day illustrated the system toward which the bill that Bush cavalierly signed moves us. It will be a system in which the media exercise an unabridged freedom of political speech while championing successive weakenings of the constitutional protection of rival voices.

In the predawn hours before Bush dashed off his signature and then dashed out of town (to raise money, including soft money), plaintiffs, most of them Bush supporters, lined up at the federal courthouse on Constitution Avenue. They will defend the Constitution against the law he signed. It is his job to defend the Constitution, but someone has to do his job when he will not.

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