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Jewish World ReviewApril 3, 2000 / 27 Adar II, 5760

George Will

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'Improving' the Bill of Rights -- LAST WEEK, Washington was a sight to behold. Two sights, actually, both involving hardy perennials. The city was a riot of cherry blossoms. And senators were again attacking the First Amendment.

Thirty-three senators--30 Democrats and three Republicans--voted to amend the First Amendment to vitiate its core function, which is to prevent government regulation of political communication. The media generally ignored this: Evidently assaults on the First Amendment are now too routine to be newsworthy. Besides, most of the media favor what last week's attack was intended to facilitate, the empowerment of government to regulate political advocacy by every individual and group except the media.

The attempt to improve Mr. Madison's Bill of Rights came from Fritz Hollings, the South Carolina Democrat, who proposed amending the First Amendment to say Congress or any state "shall have power to set reasonable limits on the amount of contributions that may be accepted, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, federal office."

So, this license for politicians to set limits on communication about politicians requires that the limits be, in the judgment of the politicians, "reasonable." Are you reassured? Hollings, whose candor is as refreshing as his amendment is ominous, says, correctly, that unless the First Amendment is hollowed out as he proposes, the McCain-Feingold speech-regulation bill is unconstitutional.

Russ Feingold, the Wisconsin Democrat who is John McCain's co-perpetrator, voted against Hollings in order to avoid affirming that McCain-Feingold is unconstitutional. McCain voted with Hollings.

The standard rationale for regulating the giving and spending that is indispensable for political communication is to avoid "corruption" or the appearance thereof. Hollings, who has been a senator for 33 years, offered a novel notion of corruption. He said the Senate under Montana's Mike Mansfield (who was majority leader 1961-76) used to work five days a week. But now, says Hollings, because of the imperatives of fund-raising, "Mondays and Fridays are gone" and "we start on the half day on Tuesdays," and there are more and longer recesses. All of which, says Hollings, constitutes corruption.

Well. The 94th Congress (1975-76), Mansfield's last as leader, was in session 320 days and passed 1,038 bills. The 105th Congress (1997-98) was in session 296 days and passed 586 bills. The fact that 22 years after Mansfield's departure there was a 7.5 percent reduction in the length of the session but a 43.5 percent reduction in legislative output is interesting. But it is peculiar to think that passing 586 bills in two years--almost two bills every day in session--is insufficient. Is the decline in output deplorable, let alone a form of corruption, and hence a reason for erecting a speech-rationing regime?

The Framers of the First Amendment were not concerned with preventing government from abridging their freedom to speak about crops and cockfighting, or with protecting the expressive activity of topless dancers, which of late has found some shelter under the First Amendment. Rather, the Framers cherished unabridged freedom of political communication. Last week's 33 votes in favor of letting government slip Mr. Madison's leash and regulate political talk were 34 fewer than the required two-thirds, and five fewer than Hollings's amendment got in 1997. Still, every time at least one-third of the Senate stands up against Mr. Madison, it is, you might think, newsworthy.

Last week's campaign reform follies included a proposal so bizarre it could have come only from a normal person in jest, or from Al Gore in earnest. He proposes to finance all congressional and Senate races from an "endowment" funded with $7.1 billion (the .1 is an exquisite Gore flourish) in tax-deductible contributions from individuals and corporations.

An unintended consequence of Gore's brainstorm would be to produce, in congressional races across the country, spectacles like that in the Reform Party today--federal money up for grabs, and the likes of Pat Buchanan rushing to grab it. But would money flow into the endowment?

With the scary serenity of a liberal orbiting reality, Gore says: "The views of the donor will have absolutely no influence on the views of the recipient." Indeed, but the views of particular recipients also would be unknown to particular donors because all money would pour into and out of one pool. So what would be the motive to contribute?

Still, Gore has dreamt up a new entitlement (for politicians) to be administered by a new bureaucracy--a good day's work for Gore.

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