Who Protects the First Amendment

On Sunday, George Will took on the GOP with regard to the 527 rules that recently passed the House. I love the defenses that Will writes about:

David Dreier (R-Calif.) explained, sort of. He said he voted against McCain-Feingold because "dictating who could give how much to whom" violated the First Amendment, but now he favors dictating to 527 contributors because McCain-Feingold is not violating the First Amendment enough: It is not "working as it was intended." That is, it is not sufficiently restricting the money financing political advocacy.

But this quote has to be the dumbest reason:

Candice Miller (R-Mich.) said that restricting 527s would combat "nauseating ugliness, negativity and hyperpartisanship." Oh, so that is what the First Amendment means: Congress shall make no law abridging freedom of speech unless speech annoys politicians.

Improving the tone of politics, leveling the playing field, fulfilling the intent of McCain-Feingold -- the reasons for expanding the restrictions on political advocacy multiply.

When McCain-Feingold was passed, people in the reform community began wondering, what can we do next? Well, we have seen efforts to control the speech of online writers (like myself), we have seen cries about 527 groups (who are now the target of more regulation) and we have seen cries about corruption and the corrupting influence of contributions by lobbyists and fundraising by lobbyists. The latter is a concern because the House Administration committee is considering a bill that would require lobbyists to disclose not only how much they personally contribute to campaigns but also how much the raise for campaigns.

The theory behind all of the good-government reforms is to make the process "more transparent." In the past, campaign finance regulation was about preventing corruption or the appearance of corruption. We have now developed new terminology and meanings for these phrases. Soft money is a bad influence, so we will limit all political giving. Attack ads are bad, so we will limit any effort to mention a federal candidate before an election.

The problem with all of these efforts, just as Will pointed out, is that each step is more about protecting the current political class and less about making politics clean. I will give Will the final words:

The Post, exemplifying the media's hostility to speech rights other than their own, eagerly anticipates the next fiddling. As it crouches behind its media exemption from the restrictions it favors for rival sources of political speech, The Post eggs on the speech regulators and hopes for "future legislation" if money diverted from 527s flows, as surely it will, into other political uses. And so the regulatory regime metastasizes, nibbling away at what McCain-Feingold enthusiasts evidently consider the ultimate "loophole" -- the First Amendment.

Fortunately, the measure the House passed April 5 will not become law this year. Not because Republican senators are too principled to pass it, or because Democrats have a truly principled opposition to it but because Senate Democrats will have 41 votes, enough to block action on it.

The Democrats, who favored McCain-Feingold and now are as cynical as Republicans about defending free speech only when it serves their competitive interests, will someday win control of Congress. Then they can wrap their anti-constitutionalism in the Republicans' April 5 rhetoric. They can say:

"In 2006 you Republicans said that because Democrats have done better than Republicans with 527s, the 527s should be restricted in order to 'level the playing field.' Now we will level the playing field by restoring the 'fairness doctrine' to broadcasting, thereby eliminating conservatives' unfair domination of talk radio."

The 211 Republicans who voted for big-government regulation of speech will have no principled objection.