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March 11, 2001

Memo to First Amendment: Look out!

WASHINGTON--The coming debate on campaign finance ``reforms'' that would vastly expand government regulation of political communication will measure just how much jeopardy the First Amendment, and hence political freedom, faces. Recent evidence is ominous.

In 1997, 38 senators voted to amend the First Amendment to empower government to impose ``reasonable'' restrictions on political speech. Dick Gephardt has said, ``What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy.'' Bill Bradley has proposed suppressing issue advocacy ads of independent groups by imposing a (BEG ITAL)100 percent tax on such ads. John McCain has said he wishes he could constitutionally ban negative ads--ads critical of politicians.

The basis of political-speech regulation is the 1971 Federal Election Campaign Act. Bradley Smith, a member of the Federal Election Commission and author of ``Unfree Speech: The Folly of Campaign Finance Reform,'' calls the FECA ``one of the most radical laws ever passed in the United States.'' Because of it, for the first time Americans were required to register with the government before spending money to disseminate criticism of its officeholders.

Liberals eager for more regulation of political speech should note the pedigree of their project. The first FECA enforcement action came in 1972, when some citizens organized as the National Committee for Impeachment paid $17,850 to run a New York Times ad criticizing President Nixon. His Justice Department got a court to enjoin the committee from further spending to disseminate its beliefs. Justice said the committee had not properly registered with the government and the committee's activities might ``affect'' the 1972 election, so it was barred from spending more than $1,000 to communicate its opinions. After the expense of reaching a federal appellate court, the committee defeated the FEC, but only because the committee had not engaged in ``express advocacy'' by explicitly urging people to vote for or against a specific candidate.

In 1976 some citizens formed the Central Long Island Tax Reform Immediately Committee, which spent $135 to distribute the voting record of a congressman who displeased them. Two years later this dissemination of truthful information brought a suit from the FEC's speech police, who said the committee's speech was illegal because the committee had not fulfilled all the registering and reporting the FECA requires of those who engage in independent expenditure supporting or opposing a candidate. The committee won in a federal appellate court, but only because it had not engaged in ``express advocacy.''

In 1998, with impeachment approaching, Leo Smith, a Connecticut voter, designed a Web site urging support for Clinton and defeat of Rep. Nancy Johnson, R-Conn. When the campaign of Johnson's opponent contacted Smith, worried that his site put him and their campaign in violation of the FECA, he sought an FEC advisory opinion.

Although Smith neither received nor expended money to create this particular Web site, the FEC said the law's definition of a political expenditure includes a gift of ``something of value,'' and the FEC noted that his site was ``administered and maintained'' by his personal computer, which cost money. And that the ``domain name Web site'' was registered in 1996 for $100 for two years and for $35 a year thereafter. And ``costs associated with the creation and maintaining'' of the site are considered an expenditure because the site uses the words that bring on the speech police--it ``expressly advocates'' the election of one candidate and the defeat of another.

The FEC advised Smith that if his site really was independent, he would be ``required to file reports with the Commission if the total value of your expenditures exceeds $250 during 1998.'' If his activity were not truly independent, his ``expenditures'' would have to be reported as an in-kind contribution to Johnson's opponent. Smith ignored the FEC, which, perhaps too busy policing speech elsewhere, let him get away with free speech.

Today Internet pornography is protected from regulation, but not Internet political speech. And campaign finance ``reformers'' aspire to much, much more regulation because, they say, there is ``too much money in politics.''

Actually, too much money that could fund political discourse is spent on complying with FECA speech regulations. To cover compliance costs, the Bush and Gore campaigns combined raised $15,135,382.54. And Bradley Smith notes that because of the law's ambiguities and the FEC's vast discretion, litigation has become a campaign weapon: Candidates file charges to embarrass opponents and force them to expend resources fending off the speech police. Consider this legacy of ``reforms'' during this month's debate about adding to them.

2001 Washington Post Writers Group

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