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Jewish World Review Feb. 23, 2004 / 1 Adar, 5764

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Rendering politics speechless | Two years ago President Bush, who had called it unconstitutional, signed the McCain-Feingold bill — furtively, at 8 a.m. in the Oval Office. The law expanded government restrictions on political speech, ostensibly to combat corruption or the "appearance" thereof. Bush probably signed it partly because the White House, thinking corruptly or appearing to do so, saw reelection advantage in this fiddling with the First Amendment.

And partly because the nation's newspaper editorial writers were nearly unanimous in praise of McCain-Feingold. The editorialists' advocacy of McCain-Feingold could appear corrupt: The bill increases the political influence of unregulated newspaper editorializing relative to increasingly restricted rival voices (parties, candidates and their financial supporters).

Last December the Supreme Court found no serious constitutional infirmity in the law because, although the Constitution says Congress shall make "no law" abridging freedom of speech, Congress has broad latitude to combat corruption or its appearance. There is the appearance of corruption when a legislator's views attract contributions from like-minded people, and then he acts in accordance with his and their views.

Today McCain-Feingold itself does not just appear to be corrupting. It is demonstrably and comprehensively so.

Most campaign money is spent on speech — disseminating ideas, primarily by broadcasting. McCain-Feingold's stated premise was that there is "too much" money in politics — hence, it follows, too much speech. McCain-Feingold's prudently unstated premise was that legislators know — and should legislate — the correct quantity of speech about themselves, the proper times for it and certain restrictions on the content of it.

Such legislating may not be corrupt, but it might appear so. And appearances are the essence of ethics, as understood by Washington's ethics industry.

Perhaps the White House embraced McCain-Feingold because it doubled to $2,000 the permissible ceiling on "hard money" contributions crucial to the president's reelection campaign. Also, Republican national committees do better than their Democratic counterparts at raising smaller hard-dollar contributions.

Supposedly, the principal purpose of McCain-Feingold was to ban large "soft money" contributions to the parties, ostensibly for "party-building" purposes. The delusional assumption of many McCain-Feingold enthusiasts was that when such contributions were banned, the people who had been eager to exert political influence by such contributions would say "Oh, well" and spend their money instead on high-definition televisions. Or something.

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Actually, McCain-Feingold was moral grandstanding by many liberals who had no intention of abiding by its spirit — or its letter, for that matter — any more than they had abided by existing campaign finance law. To compensate for Republican advantages in raising strictly limited hard dollars, Democrats quickly formed a slew of committees technically disconnected from the party but allowed to receive unlimited soft dollars.

Allowed, that is, as long as the committees do not spend money "for the purpose of influencing any election for federal office." Under McCain-Feingold, and for 30 years before it, entities that raise and spend money for that purpose are subject to hard-dollar limits.

McCain-Feingold's ban on large soft-money contributions to political parties has spawned many groups, mostly liberal ones, to receive and spend such contributions as surrogates for the parties — groups such as America Coming Together. Ellen Malcolm, ACT's president, says her group aims to increase voter turnout in 17 states crucial to the presidential election in order "to beat George Bush."

It appears that she intends to influence a federal election. Nothing wrong with that. Citizens are supposed to do that. But liberals have been the prime movers in enacting laws against doing so with soft money, which organizations such as ACT exist to receive.

ACT says it "will coordinate with progressive organizations." But it had better not coordinate with the Democratic Party or candidates. There would be nothing morally wrong with such coordination. It should be a fundamental right — indeed, a civic virtue — for groups such as ACT to coordinate with like-minded political parties. But "coordination" is criminal under McCain-Feingold.

House Republicans are now trying to subpoena records of these Democratic groups, clearly hoping to have a chilling effect on them. This is disgusting — but Democrats deserve it because they have entangled America's core liberty, political speech, in an ever-thickening web of regulations they now are evading.

On Wednesday the Federal Election Commission, which is now in charge of deciding what speech is legal under McCain-Feingold and Supreme Court ambiguities, issued a ruling — many more to follow — of exquisite opacity. The chairman of the Republican National Committee said it "effectively shuts down" groups such ACT and others. A spokesman for ACT cheerily said the group would continue "to operate robustly and effectively." It is a constitutional obscenity that no one now knows — or, pending many more FEC and court rulings, can know — what political speech is legal in this nation where the First Amendment is no longer even pertinent to protecting such speech.

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