A 100 Percent Tax On Speech?

At a stroke, Bill Bradley recently refuted the bromide that he is boring, and in doing so he usefully illuminated the upcoming Senate debate on campaign finance reform. He did all this with a remarkable proposal--a proposal flagrantly unconstitutional and amazingly inimical to democratic values, but definitely not boring.

On a call-in program on New Hampshire public radio, Bradley was at first boring: he advocated public financing, saying we spend $900 million a year promoting democracy abroad and for about the same sum we could supplant all private money with public money in campaigns. This would "totally take special interests out of our election process." His unremarkable, because familiar, thought raises questions:

By what criteria would he sort the "special," and impliedly disreputable, interests from the nonspecial, reputable ones that deserve to be in our election process? When the sorting is done, what will that process be about? Is Bradley a modern Mugwump, trying to scrub the stain of politics from politics? Bradley is a practicing liberal who (therefore) is comfortable with the regulatory state, which, with all its regulating and subsidizing, is waist-deep in the business of allocating wealth and opportunity. Does he understand that the way to reduce the role of money in politics is to reduce the role of politics in the acquisition of money?

But let us move on to Bradley's remarkable idea.

The host of the radio program, noting that Bradley is ardent for campaign reforms, asked about "issue ads," noting that "nonprofit advocacy groups" of many persuasions are alarmed about the regulation of such ads envisioned by the Shays-Meehan bill, the House-passed version of campaign finance reform. Bradley replied that the way to deal with issue ads is to "simply say if somebody is going to buy an issue ad, that there's got to be an equal time on the other side." That, he said, is "the regulatory way. The market way to do it is simply say, when an issue ad is put on, there's a 100 percent tax, and the 100 percent tax is then given to the other side so that you get both points of view presented and you simply don't have the point of view that has the most money behind it dominating the airwaves."

A caller declared it "appalling" and "scary" to say "if I'm going to express my opinion I have to support somebody else who wants to express his opinion." And the caller added that Bradley, by talking about giving money to "the" other side so that people would hear "both" points of view on an issue, assumes, unrealistically, a tidy bipolarity of public debate, rather than a variety of opinions on particular issues. Bradley called that "a very good point" and "food for thought."

Here is more such food: the campaign finance reformers' assault, in the name of political hygiene, on the First Amendment is now so sweeping, and so untroubled by even twinges of conscience, that a mainstream politician like Bradley can casually propose such a tax on political communication. Note well: the tax is intended not to raise revenue but to change behavior--to extinguish an entire category of political advocacy.

Bradley suggests this in the name of a chimera. It can be called "equality of political efficacy." The reformers' preferred metaphor is "leveling the playing field." They should listen to the logic of their language: fields are leveled by bulldozers. Speaking of scary, imagine the government as a bulldozer used to produce equality of political advocacy for each point of view and "the" other side.

Fortunately, the Supreme Court has said government cannot require people "to pay a tax for the exercise of that which the First Amendment has made a high constitutional privilege." And "the power to tax the exercise of a privilege is the power to control or suppress its enjoyment" and is "as potent as the power of censorship." And "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."

Bradley has usefully compared money in politics to ants in the kitchen: "You have to block all the holes or some of them are going to find a way in." This is a useful metaphor because it explains why the law regulating political speech must metastasize.

Controls on "hard" money, which is given directly to particular candidates, do not allow the political class to ration political speech as effectively as that class desires. So it wants to supplement those controls with controls on "soft" money, which is given to parties to fund advocacy and other activities not specifically supportive of particular candidates. But even controls on "hard" and "soft" money will be largely vitiated unless "express advocacy"--urging the election or defeat of specific candidates--by private groups is controlled. But even those three kinds of restrictions on political communication will not give the political class the control it desires over communication about itself unless restrictions are imposed on issue advocacy by private groups. Hence Bradley's 100 per-cent tax.

His proposal is not of practical importance: in the unlikely event Congress enacted it, the Supreme Court would hurl the law back across First Street, N.E., with "Are you out of your collective minds?" scrawled across it. But Bradley's proposal is profoundly important as a symptom of the indifference--no, hostility--of campaign reformers to First Amendment values.

Now that it has become "progressive" to "reform" politics by restricting political speech, reformers are constantly dreaming up refinements to the restrictions. As a result, the nation is acquiring a speech code that, like the tax code, is constantly in play, subject to endless tweakings by groups seeking additional advantages. Speech-rationing laws, once present, proliferate, like ants in the kitchen.

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