Censoring America: an attempt to squelch ads for a controversial new film illustrates how "campaign finance reform" has created a new corps of federal speech police.

On March 27, 2002, with a studious lack of fanfare, President Bush signed into law the "Bipartisan Campaign Finance Reform Act" (or BCFRA), a measure supposedly intended to relieve politics of the corrupting influence of corporate money. Rather than affixing his signature to the legislation in an elaborate Rose Garden ceremony, surrounded by the bill's congressional sponsors and other invited guests, Mr. Bush quietly penned his name on the document away from public scrutiny, announcing the action after the fact in a White House press release.

Why did President Bush uncharacteristically avoid taking credit for signing BCFRA into law? After all, the bill-signing ceremony is a high-profile exercise of presidential power and a prime opportunity to cultivate congressional allies. It's reasonable to conclude that President Bush's political handlers regarded BCFRA's enactment as shameful in some sense, and with good reason: The measure is an assault on freedom of speech in the interest of protecting the political class. For good reason the measure has been described as the "incumbent protection act."

Attacking the Constitution's Core

Mr. Bush's decision to sign the BCFRA bill prompted widespread disappointment and criticism from many conservative commentators and supporters. Prominent among the BCFRA law's conservative opponents was radio impresario Rush Limbaugh, who pointed out that it could be used to define his daily political commentaries as "electioneering" and thus make his show subject to federal regulation.

Under the BCFRA, independent citizen groups are forbidden by law to air advertisements on TV and radio mentioning candidates by name during a period of 60 days prior to a general election, or 30 days before a primary. Political Action Committees (PACs) are permitted to do so, but under extremely invasive and restrictive federal regulations. Those found in violation of the law's provisions--which are as detailed and opaque as the tax code--are liable to huge punitive fines. Since public attention to politics peaks during those periods, and since the major media are exempt from BCFRA, the law is designed to silence independent voices from the political discourse precisely when they can be most effective.

As he signed BCFRA, President Bush, who had promised in his 2000 campaign to veto any "campaign reform measure" that threatened free speech, admitted that "certain provisions" of the law "present serious constitutional concerns." Breezily ignoring his sworn duty to defend the Constitution, Mr. Bush averred that he expected the Supreme Court to "resolve these legitimate legal questions as appropriate by law."

When the Supreme Court took up a challenge to the measure, several conservative groups, led by a Beltway GOP front group called Citizens United, filed an amicus curiae (friend of the court) brief opposing the measure. The BCFRA measure, contended the brief, "abridges the freedom of the press by imposing discriminatory licensing regulations, editorial controls, and significant economic burdens and penalties upon political parties, political committees, candidates for federal office and their authorized campaign committees" It likewise fastens similar unconstitutional burdens on "broadcast, satellite and cable media companies, nonmedia companies and associations, [and] nonprofit organizations and individuals," who, unlike elite media covered by an exemption, are subject to scrutiny by the Federal Election Commission (FEC) during election campaigns.

Simply put, private entities not granted an exemption under BCFRA could find themselves effectively under the editorial control of the FEC during federal political campaigns. As the brief further pointed out, the regulatory burdens and potential penalties imposed by the FEC have the effect of "shielding [incumbent] officeholders from uninhibited, robust, and wide-open debate on public issues by a grant of censorial power over the people reminiscent of the power exercised by the infamous Star Chamber to regulate elections and license the press to ensure government by royal favorites in 17th-century England." BCFRA, the brief concluded, represents an impermissible attack oil "core political speech relating to federal elections...."

Contrary to Mr. Bush's blithe predictions, the Supreme Court upheld the most egregious elements of the BCFRA measure in its McConnell vs. FEC decision. "Now that the court has spoken, we must make sure that the law is properly interpreted and enforced," exulted Senators John McCain (R-Ariz.) and Russ Feingold (D-Wisc.), co-authors of the measure. In nicely symmetrical fashion, one of the first enforcement actions taken under the enhanced campaign finance law is Fahrenheit 9/11, an anti-Bush documentary by leftist director Michael Moore (see our review on page 17).

In late June, reported The Hill, the general counsel for the Federal Election Commission (FEC) issued an opinion that TV advertisements for Moore's film are covered by the section of BCFRA law restricting corporate-funded ads "that identify a candidate by his 'name, nickname, photograph or drawing' or make it 'otherwise apparent through an unambiguous reference.'"

Buttressing this action against Moore's film was an FEC complaint filed by a partisan Beltway lobbying group insisting that the documentary is "a political weapon against President Bush in the November 2004 presidential election," The group that filed the complaint was Citizens United--the same GOP front group that had composed a compelling brief against the BCFRA law, at least as it would apply to their interests and allies.

"It is my firm belief that the persons involved in the marketing and distribution of Fahrenheit 9/11 will soon be in violation of the Act's funding restrictions and disclosure requirements," asserted David Bossie, president of Citizens United, in a letter to Attorney General John Ashcroft (who is depicted very unfavorably in Moore's documentary). "I urge you to take appropriate action in this matter, including referring it to the Election Crimes Branch of the Public Integrity Section of the [Justice Department's] Criminal Division for review and further investigation."

Bossie also dispatched a letter to Michael Powell, chairman of the Federal Communications Commission, to inform him that "broadcast facilities under the FCC's jurisdiction are running ads" for the movie "featuring images of President George W. Bush and other candidates for public office that are critical of the President's policies in the aftermath of the September 11, 2001 terrorist attacks on America. As I'm sure you know, President Bush is a candidate for re-election this year." Consequently, Bossie insisted, FCC-licensed broadcast outlets that run ads for Moore's film are subject to federal scrutiny. (It should be noted that Powell's father, Secretary of State Colin Powell, is portrayed in an unflattering light in Moore's film.)

After urging the feds to go after those promoting Moore's movie, Citizens United also dispatched letters to various "broadcast facilities" warning that advertisements for the film would be subject to federal election laws.

Political Rocks in Glass Houses

"Citizens United stands second-to-none in fighting for free speech," insists Bossie. "We are insisting the law be applied equally to all who are involved in campaigns or elections."

Given Citizens United's forceful--and very compelling--indictment of the BCFRA law as an attack on free speech, it seems that the best and most obvious way to ensure that the law applies "equally to all" would be to seek its repeal. The First Amendment, which has correctly been called our "paramount election law," would be restored to its proper place of primacy and allow for the "uninhibited, robust, and wide-open debate" Citizens United endorsed in its anti-BCFRA brief.

Alternatively, if Citizens United actually seeks to apply the anti-free speech provisions of the BCFRA law with equity, it can find a target-rich environment in the GOP-connected conservative media network. As Rush Limbaugh has correctly observed, conservative talk radio hosts (many of whom--including G. Gordon Liddy and Michael Reagan--applauded Citizens United's FEC complaint against Moore) offer an inviting target for BCFRA enforcement actions. This is particularly true of Sean Hannity's popular nationwide program, which amounts to a daily three-hour Bush campaign commercial.

Furthermore, Citizens United--in the interest of fairness, of course--could advise the FEC to monitor the planned release of several pro-Bush films in September, timed to coincide with the GOP's national convention. Hollywood Reporter noted on June 25 that "several filmmakers are readying documentaries aimed at debunking Michael Moore," to be shown at the American Film Renaissance from September 9-11 in Dallas. The featured at traction will be a theatrical-quality documentary entitled Michael Moore Hates America, which is seeking a distribution deal.

Jim and Ellen Hubbard, co-founders of the festival, organized the event "in the spirit of competition," notes Hollywood Reporter. Efforts to suppress Moore's film "are for the weak," insists Jim Hubbard. "We want everyone to see Michael Moore's film. We also want everyone to see 'Michael Moore Hates America.' Conservatives complain about institutional bias in Hollywood. They need to stop whining and get out there and produce."

But if the approach pioneered by Citizens United prevails, political activists from both sides of the partisan divide will be able to demand federal regulation of such political documentaries as "electioneering." As antagonists increasingly avail themselves of the opportunity to sic the feds on each other, there would be less competition, less freedom of speech, and less accountability in government.

Indeed, previous "campaign reform" measures have already produced that result, in a limited fashion. In February 1997 testimony before the House Judiciary Committee's Subcommittee on the Constitution, the present chairman of the Federal Election Commission, Bradley A. Smith--who was then a professor at the Capital University Law School--observed that in recent years litigation against issue advocacy groups (those who promote political views, as opposed to candidates) "has become a major campaign tactic":

   Thus we have Republicans filing
   complaints against the AFL-CIO, and
   Democrats filing complaints against
   the Christian Coalition, U.S. Term
   Limits, Americans for Tax Reform,
   and the Christian Action Network,
   just to name a few recent complaints.
   In each case, the complaints amount
   to a blatant effort to silence political
   advocacy by these groups. In each of
   these incidents, the groups involved
   were not engaged in any nefarious activities
   such as vote fraud or bribery.
   Rather, their alleged infractions
   amounted to what might be called the
   crime of "committing politics." That
   is to say, the groups involved were
   trying to persuade the American people
   that either their positions were
   right, or someone else's were wrong.

"I think it is important to briefly remind ourselves that, for most of this country's history, the funding of political campaigns has been totally or largely unregulated," continued the professor. "During our nation's first century ... there were literally no laws regulating campaign finance. And today, we often look back on that century as a golden age of politics--one in which memorable debates over such monumental issues as slavery and western expansion were discussed in serious campaigns, one in which people talked and debated these issues...."

Since assuming the post of FEC Chairman, former Professor Smith has continued publicly to express reservations about the wisdom of regulating the election process to the extent prescribed by BCFRA. In a January 29 speech before the American Conference Institute, Smith referenced the McConnell vs. FEC decision upholding BCFRA's anti-free speech pro visions. In criticizing the decision, Smith observed: "With McConnell, the Court in a bold stroke has changed, at least lot the near future, the presumption that speech about issues and candidates was protected from regulation."

It is ironic that a scholar with a history of defending constitutional protections of free speech is now charged with enforcing regulation of the election campaign process, but as Smith acknowledged in a March 19 speech to the Republican Lawyers Association: "[W]hether I am right or wrong in these political musings, we at the Commission [FEC] cannot base our decisions on such perceived partisan advantage. Regardless of our personal views, we must follow the law." Smith also admonished members of the more "conservative" party: "I urge Republicans to embrace their deregulatory roots in the area of campaign finance regulation."

Though the present FEC chairman may be a reluctant participant in the regulatory process who is duty-bound to implement the law, constitutionalists should be concerned that Mr. Smith's successor may embrace BCFRA wholeheartedly and take its enforcement as far as he can.

Incumbent Protection Racket

Protecting incumbents from negative publicity during election campaigns is the sum and substance of "campaign finance reform." Rather than "cleaning up" politics by removing the supposedly corrupting influence of corporate donations, BCFRA is intended to clamp down on advertising and other avenues of expression used to convey critical information about elected officials to the public.

In a 1997 interview on NBC's Meet the Press program, Senator John McCain (R-Ariz.), co-sponsor of the McCain-Feingold BCFRA bill, offered a telling illustration of what he considers the limits of "accept able" political speech. Referring to critics of his proposed legislation, McCain declared: "I think informing the public is perfectly legitimate. But to launch an attack on me or, in this case, Senator Feingold, in my view, is their participation in a political campaign, and therefore, they might be subject to some kinds of limitations."

Which is to say that in the intellectual universe McCain inhabits, citizens need permission to criticize government, and specific government guidance as to the forms of permissible criticism.

McCain offered a similar defense of political censorship in a September 26, 1997 speech on the Senate floor discussing television and radio advertisements that mentioned specific candidates without explicitly endorsing either of them. "These ads are almost always negative attacks on a candidate and do little to further healthy political debate," McCain insisted, in the apparent belief that there is something innately unhealthy about a critical examination of an incumbent official's record.

Predictably, the desire to protect incumbents from negative campaign publicity is entirely bipartisan. "What we have here is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy.... You can't have both," asserted Rep. Dick Gephardt (D-Mo.), as quoted in the February 3, 1997 issue of Time. Mark this well: Gephardt was candidly saying that "healthy campaigns" require the suppression of freedom of speech.

Congressman Sam Farr (D-Calif.) is also on record demanding limits on the First Amendment guarantees enjoyed by his political opponents, particularly pro-life and pro-gun groups. Writing in the January 24, 1997 issue of Roll Call, Farr railed against the "unlimited, undisclosed, and unabashed campaigns waged by persons or groups outside the regular electoral system that are largely unregulated," especially "groups like the National Right to Life Committee [who] spend millions of dollars advocating political positions and cursing the souls of anyone who might disagree."

Farr, one of the most militantly pro-abortion members of the House, groused that the NRLC "claims exemption from laws that would otherwise regulate its material as coordinated campaign expenditures or in-kind contributions." In the interests of what Gephardt would call a "healthy democracy," Rep. Farr asserted, the ability of such independent issue oriented groups must be subject "to some kinds of limitations."

Senator Barbara Boxer (D-Calif.), another politician who has felt the lash of issue-advocacy ads, pointedly admitted during debates over the McCain-Feingold BCFRA bill that "this bill is about slowing the ad war.... It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves." Like Farr, Boxer wanted to beat down pro life groups whose ads lambasted her support for "partial-birth" abortion.

Former Senator Max Cleland (D-Ga.) also became a passionate advocate of McCain-Feingold for similar reasons. In the days leading up to a May 20, 1997 vote in the Senate on the Partial Birth Abortion Ban Act, Cleland's office was besieged by phone calls urging him to vote in support of the measure. Behind this deluge of constituent feedback was a series of radio and television advertisements run by three pro-life organizations. While the phone calls did not prompt Cleland to vote in favor of the bill, they did "reinforce his commitment to changing the nation's campaign finance laws," according to the Associated Press.

The ads in question were run nearly a year and a half before a general election, and over five years before Senator Cleland would next stand for re-election. Thus the ads could not fall under the category of "campaign reform," even by the most emancipated definition of the term--unless it is understood, once again, that the true intent behind BCFRA is to insulate incumbents from accountability to their constituents.

The objective under BCFRA is not free speech, but "good" or "healthy" political speech--with government defining the critical terms. In remarks delivered at the February 1998 congressional hearing, Burt Neuborne of the Brennan Center for Justice, a leftist think-tank that strongly supported the McCain-Feingold measure, commended the committee "for the disciplined way the hearing has been run, and how carefully you maintained the ground rules that allowed real free speech to come out here. And I'm really saying that the same idea has to be thought of in the electoral process.... In a courtroom, speech is controlled. In this room, speech is controlled, and the net result is good speech."

Control Government, Not Citizens

The FEC has historically displayed a Soviet-style penchant for suppressing political speech. In the mid-1970s it targeted the Long Island Tax Reform Immediately (TRIM) Committee, part of an ad-hoc citizens group affiliated with the John Birch Society (of which this publication is also an affiliate). TRIM publishes bulletins describing each incumbent congressman's votes on key spending bills, using the text of the Constitution as the primary criterion for assessing those votes. (The bulletins do not mention the congressman's party affiliation.) Each vote deemed to be in favor of "high taxes and more government" receives an "X"; each vote in favor of "lower taxes and less government" receives a star.

Congressman Jerome Ambro, who did not like TRIM's depiction of his voting record, filed a complaint with the FEC. the federal agency in turn filed an enforcement action against the Long Island TRIM Committee, which challenged that action in court. In a December 1980 decision, the U.S. Court of Appeals for the Second Circuit dismissed the FEC complaint.

"I confess I find this episode somewhat perverse," commented Chief Judge Irving R. Kaufman in a concurring opinion. "It is disturbing because citizens of this nation should not be required to account to this court for engaging in debate on political issues." It is equally perverse to saddle conscientious citizens with exorbitant legal fees incurred by battling a taxpayer-funded federal agency in court. The Long Island TRIM Committee spent roughly $135 to produce and distribute a few thousand of its bulletins. Defending the Committee's fight to publish its opinions eventually cost more than $100,000 in legal fees.

"Campaign finance reform" is based on the socialist assumption that "reform" is best accomplished by limiting the rights of citizens, rather than the powers of government. If government defines the "ground rules" for political speech, freedom of speech doesn't exist--except for the "freedom" to endorse and support the incumbent government and its policies.

The FEC's final decision regarding Michael Moore's film probably won't come until sometime next year when it's entirely possible that the executive branch (including the FEC) will be head ed by John Kerry, rather than President George W. Bush. If the FEC should expand the definition of "electioneering" to include Moore's documentary, conservative commentators, activists, and artists--including Citizens United itself-- may soon find themselves fair game.