Concerning false invocations of political piety, Samuel Johnson famously remarked, “Patriotism is the last refuge of the scoundrel.” While generally agreeing with that sentiment, the estimable political scientist James Q. Wilson observed that the great man had over-looked the possibilities presented by the word “reform.” Nowhere is Wilson’s amendment more apt than in current efforts to alter (yet again) our federal campaign finance laws.
Of all the Watergate-era reforms (including the late, unlamented Special Prosecutor Law), none has had a more deleterious effect than the Federal Election Campaign Act of 1970. Enacted by an overwhelmingly Democratic Congress that believed it would (and should) rule forever, the legislation mandated various limits on campaign contributions and spending, whose intended—although disguised— effect was to protect the safety of incumbents’ seats. In 1974, the Federal Election Commission was created to enforce the Act’s provisions. We were assured by congressional proponents, assorted Good Government types, and their epigones in the major media that the buying and selling of elections would once and for all be banished from our shores.
A generation later, we are told that corruption still abounds and that we need more reform to close unconscionable “loopholes.” Although you’d never know it from the pious press releases issued by the regulatory nannies at the Federal Election Commission (FEC), among these loopholes is something called the First Amendment and its guarantee of unfettered political discourse. In the latest go-round, the House of Representatives approved on September 14 the Shays-Meehan bill that would, inter alia, impose draconian and blatantly unconstitutional restrictions on the ability of advocacy groups to inform the public about the activities of their elected representatives. At issue is the definition of “express advocacy,” the legal term of art by which the Supreme Court sought to distinguish between valid regulation of campaign conduct and constitution-ally protected free speech.
Under Shays-Meehan, express advocacy is redefined in such a way as to make almost every public communication on the part of even non-profit interest groups a potentially forbidden form of election campaign activity. For example, the bill would flatly prohibit even mentioning the name of a candidate within 60 days of an election, and make it exceedingly difficult to do so without running afoul of the FEC at any other time during an election year.
Politicians love this sort of regulation, of course, because it would limit election commentary to uninformative pablum served up by the networks, leading newspapers, and, of course, by the politicians themselves. Shays-Meehan would place a sizable piece of Kevlar between officeholders and their critics.
You know you are being well served by your representatives when you can see the perspiration on their brows prior to a vote. Elected representatives, not surprisingly, like to wallow in air-conditioned comfort, where they can natter about the burden of public office as if it were some sort of dutiful servitude and characterize their opponents as so many “single-issue” zealots who selfishly disregard the “public interest.”
If enacted, Shays-Meehan would, among other effects, virtually cripple the right-to-life movement. Protectors of the unborn, God bless ’em, were placed on this earth to disturb the solace of politicians who are indifferent to abortion and its consequences. Virtually all of the movement’s successes have depended on its freedom to advocate, often vigorously and pugnaciously, the case for those who cannot speak for themselves. To render that advocacy a species of regulated campaign activity would subject it to the tender mercies of regulators for whom the First Amendment’s protections are, at best, a persistent though unlikely rumor. The House, which tends to panic in even-numbered years, caved to fashionable pressure in supporting Shays-Meehan. The bill’s fate in the Senate is somewhat less certain, but Professor Wilson’s warning should be taken to heart. As Senators prattle about the public good, see to it that you can count the beads of perspiration on their foreheads.