June 17, 2003
The difference between what the First Amendment says and what the U.S. Supreme Court rules can be surprising, especially when politicians in Congress manipulate rules that govern their own elections.
The First Amendment's unqualified command is plainly stated: "Congress shall make no law…abridging the freedom of speech." That won't change no matter how often the court misreads it.
And Monday's decision upholding a 1971 ban on direct contributions by non-profit advocacy groups that incorporate is another in a series of Kafkaesque readings of the First Amendment. A ban in that same 32-year-old law on independent political spending by such non-profit groups is still unconstitutional. But a ban on their direct contributions to candidates is now held to be so vital to our republic that the First Amendment supposedly must allow it.
There is at least a logical, though not compelling, argument for the total ban on for-profit corporations' political expenditures and contributions: It prevents them from amassing wealth from unsuspecting citizens who buy their widgets and then using it to "corrupt" the political process.
Supporters and members of non-profit advocacy groups know what their organizations stand for. It was for this reason that the court held in a 1986 case that independent expenditures by these groups were not "corrupting." However, with a wave of the court's majority wand, non-profits' direct contributions -- even under strict limits that apply to individuals -- somehow now pose grave risks of corruption. Beware of local voluntary associations.
So it may go for up to a dozen novel restrictions on speech that Congress enacted in its latest "law" known as the McCain-Feingold Bipartisan Campaign Finance Reform Act. The lower court hearing the challenge to that law could not agree on the constitutionality of the new "soft money" contribution limits, which were necessitated by what past "reform" efforts did in defining and restricting other political donations. But a majority of judges struck them down.
Monday's opinion makes it more likely that the high court will smile upon them. Or perhaps not. Both the court and the press ought to value the First Amendment more than this shameful process suggests.
Todd Gaziano is director of the Heritage Foundation Center for Legal and Judicial Studies.
Appeared in USA Today