A terrible Supreme Court decision

Sunday, December 21, 2003

Quick: Everybody who wants to make it against the law to criticize a politician within 60 days of an election, raise your hand.

This is what has happened with perhaps the most disastrous Supreme Court decision of my lifetime. That would be the recent decision by the U.S. Supreme Court upholding the McCain-Feingold campaign-finance law.

Now vindicated by five arrogant judges writing for a bare 5-4 majority, this law is enshrined as the biggest threat to your First Amendment freedom of speech since the Alien and Sedition Acts of 1798. Those infamous acts flat-out made it a crime, punishable by jail time, to criticize the government. At least they were repealed following Thomas Jefferson's victory in the elections of 1800.

At the heart of McCain-Feingold is a set of restrictions on how much can be spent in political campaigns. These restrictions especially disadvantage challengers by restricting their speech. These spending limits thus further entrench the incumbents who, 99 percent of the time, raise and spend far more money.

Any doubters as to the truth of the above statement should take a test. The right freely to travel is surely one of our basic freedoms, essential to the distinction between free societies and totalitarian ones. But suppose I, as an officeholder, got a law passed -- and convinced some judges to uphold it -- that restricted the amount you can spend to travel to $2,000. Have I gutted you right to travel? Of course I have. It is no different with speech, especially speech that candidates are attempting to communicate in a political campaign.

It is beyond bizarre and nothing less than a betrayal of their duty to defend the freedoms of all Americans, that so many newspapers have backed this law and this court decision. Is raising and spending money to communicate speech tantamount to speech itself? No, say these editorial boards, denying my premise. Well, why not place a limit on how much the St. Louis Post-Dispatch or USA Today can spend paying reporters to gather the news, or editorial writers to communicate their views? Quick would come the outraged response: "You have infringed freedom of the press!" they would say. They would be right.

It isn't too much to say that the next thing to be expected from a court that could uphold such a law is outright regulation of the press: What media organs can say, how much they can say it, and when. Wildly improbable, you say? Perhaps. But so, just a few short years ago, would have been an act outlawing criticism of politicians in the decisive days leading up to an election. Today it's the law.

The most disastrous misstep of an otherwise splendid presidency was this president's decision to sign this awful bill. He and his people knew it was unconstitutional (President Bush himself suggested as much) under First Amendment jurisprudence, properly understood. The president takes an oath to uphold and defend the Constitution. And still he signed it. Very sad.

In 1996, this writer was seeking re-election to the Senate in a contested campaign. The Sierra Club weighed in at the end, paying for a radio advertising campaign that decried my record on matters environmental. This is precisely the kind of speech, once firmly guaranteed by the First Amendment, that five judges have now said can be prohibited. Behold, your rights are disappearing: We're that much less a free country.

I'll conclude with a prediction: Twenty or 30 years from now -- sooner if we're lucky -- we'll see this catastrophic decision overturned by a court majority that truly does value my First-Amendment freedoms, and yours, and those of every American.

Peter Kinder is assistant to the chairman of Rust Communications and president pro tem of the Missouri Senate.

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