Free Speech Under Siege

Attacks on freedom of political speech are becoming more brazen. Because the attackers aim to enlarge government's control of the political campaigns that decide who controls government, the attacks advance liberalism's program of extending government supervision of life.

Some liberal senators have filed a brief urging the Supreme Court, in a case concerning Vermont's speech restrictions, to affirm that people like the seven senators--"elected representatives and seasoned participants in the electoral process," meaning professional politicians--"are entitled to broad deference in the regulation of federal elections." Entitled, that is, to regulate the quantity, the timing and even the content of speech about themselves. Indeed, in its 5-4 decision upholding the McCain-Feingold law's expansion of government regulation of political communications, the Supreme Court held that political incumbents are entitled to judicial deference when they write rules that control challenges to their incumbency.

Under Vermont's limits, a candidate for state representative in a single-member district can spend no more than $2,000 in a two-year cycle. Every mile driven by a candidate--or a volunteer--must be computed as a 48.5-cent campaign expenditure. Just driving--and not much of it--can exhaust permissible spending.

In 1976, the Supreme Court affirmed the constitutionality of federal limits on large contributions because such limits serve the compelling purpose of preventing corruption--which is already illegal--or the "appearance" of it. But the court struck down spending limits because they involve no similar "appearance." Obviously such laws limit the quantity of political communication and favor the well-known incumbents who enact them: they limit the ability of challengers to make themselves known.

When writing regulations to implement McCain-Feingold, the Federal Election Commission in 2002 declined to bring Internet political speech, meaning bloggers, under the metastasizing federal apparatus of speech regulation. McCain-Feingold does not mention the Internet when listing forms of "public communication" (e.g., mailings, billboards) the FEC should regulate. But unregulated speech is an affront to today's liberalism. And a federal judge with an interesting theory of liberty--that whatever Congress does not specifically exempt from regulation should be regulated--decided that the FEC's exempting the Internet from regulation is impermissible because Congress was silent on the subject. She ordered the FEC to write regulations. This, even though Internet communication is limitless, virtually cost-free and, hence, wonderfully anarchic.

So Rep. Jeb Hensarling, a 48-year-old Texan, tried riding to the rescue. Hensarling is a Republican, which means next to nothing nowadays, but also a libertarian, which means he believes, as Republicans once did, in limited government. He proposed the Online Freedom of Speech Act, to exclude blogs, e-mails and some other Internet communications from federal regulation. He got 55 percent of the House votes, but two thirds were needed to get expedited action. The speech rationers, a.k.a. the "reform community"--abetted by much of the unregulated mainstream media, which advocate regulating rivals--will redouble their efforts to clamp the government's grip on the Internet, and require bloggers to hire lawyers.

The grip was recently extended to talk radio in Washington state. A judge ruled that two Seattle talk-radio hosts who advocated repeal of a gas-tax increase must compute the cash value of their speech as a "campaign contribution," subject to regulation. Fortunately for the hosts, the speech did not occur in the last three weeks of the campaign, when speech valued at more than $5,000 is a crime.

In California, "progressive" thinking has progressed to the conclusion that because money in politics is bad, political competition is, too. Gov. Arnold Schwarzenegger advocated, unsuccessfully, having retired judges draw legislative districts in order to reduce gerrymandering and produce more competitive races. A group opposed to that argued that if districts were more competitive, "politicians would be forced to spend more money and become more dependent on special-interest money."

But liberals' abhorrence of political money is selective. Roll Call, the Capitol Hill newspaper, recently reported that when Democratic senators met in a Capitol room near the Senate floor to plan strategy, their leader, Harry Reid, permitted Stephen Bing to attend. In 2004, Bing, 40, gave more than $14 million of his inherited wealth to Democratic candidates and liberal groups supporting them.

Was there any appearance of impropriety--say, cash purchasing access? Gosh, no, said Democrats to Roll Call: "Reid's aides and other Senate Democrats said there is nothing wrong with such a big donor attending meetings otherwise open to only senators and a few top aides, because Bing is not a lobbyist and is not seeking any favors from Democrats." Sen. Barbara Boxer explained that Bing is "just really interested in making this country better." Oh, well, in that case...