Late Edition: Gagging the Pro-Life Voice

The adage that no one’s wallet is safe while the legislature sits requires a codicil: Lock up the Constitution when Congress debates election reform. The McCain-Feingold Campaign Finance Reform Act—that mouthful of a name for the pending legislation designed to reduce the influence of money in politics—is actually a serious threat to the First Amendment’s guarantee of freedom of speech. And the interest group most likely to be crippled by McCain-Feingold is the pro-life movement. It is now nearly impossible to use the courts to restrict abortion, leaving political advocacy aimed at the legislative process as one of the few remaining effective tools for pro-lifers. If McCain-Feingold becomes law, even that avenue will be closed off.

The U.S. Senate, which approved McCain-Feingold by a 50-41 vote in April, chanted its mea culpas before the television cameras and huffed itself into high dudgeon on the evils of the filthy lucre that had gotten its members elected to their seats. Then it voted not only to ban “soft money” (large, unregulated contributions to national political parties), but to prohibit unions, corporations, and many interest groups from buying broadcast advertising referring to specific candidates within 60 days of a general election (or 30 days of a primary).

The iron law of all campaign-reform legislation is that incumbents will do everything they can to save their seats, never mind the Constitution. That was the case in 1974, when Congress enacted sweeping curbs on campaign contributions after Watergate, and it is the case now. If you want a measure of how deeply the instinct for self-preservation runs, consider this: 41 senators supported a proposed constitutional amendment (which mercifully failed) that would bar court challenges to McCain-Feingold on First Amendment grounds.

Many media pundits are all agog about McCain-Feingold’s restriction on soft money, but the ban tends to cut against challengers, who cannot easily match the tax-supported propaganda machinery that is an inherent perk of incumbency. When it comes to soft money, the public has been led to think in terms of well-heeled business corporations and unions. But the most effective criticism of incumbents often comes from independent issue- advocacy groups, whose activities will be severely hampered by the Senate- approved bill. Until now, issue advocacy has been fully protected by the First Amendment, but in their relentless effort to insulate themselves against criticism, a majority of senators have shown that they are prepared to trample free-speech rights.

 

This is a matter of no small moment to the pro-life movement. From Roe v. Wade in 1973 to Stenberg v. Carhart in 2000, the Supreme Court, along with the rest of the judiciary, has made itself aggressively inhospitable to protection of the unborn. The Supreme Court has even sanctioned chilling restrictions against peaceful pro-life demonstrators that would not be tolerated if they were protesting anything else.

The bill’s most onerous restrictions on free speech are buried in legalistic definitions and details that only an election-law expert can parse. But their effect will be draconian. McCain-Feingold would ban most advocacy groups from placing ads that even mention the name of a member of Congress within 30 days of a primary or 60 days of a general election. Another provision would expand current restrictions on political spending so that certain issue advertising could be prohibited at any time. Still another provision would treat independent activities on the part of advocacy groups as if they were forbidden “coordinated” activities on behalf of a candidate.

Taken together, these and other features in McCain-Feingold would impose a gag rule on pro-life advocacy. Even if pro-life groups weather a protracted court challenge, the regulatory harassment and the legal costs could cripple these organizations that now enjoy the protection of the First Amendment. Make no mistake about it: McCain-Feingold is the most shameless and egregious assault on free speech in modern times. The Senate failed to endorse a formal constitutional amendment that would narrow the scope of the First Amendment, but it might as well have. McCain-Feingold deserves to die before it ever sees the light of day.

Michael M. Uhlmann

By

Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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