Free speech and the fight over campaign finance reform
August 19, 2003

A year or so ago, Sen. Mitch McConnell (R-Ky.) was scheduled to address several thousand conservative activists gathered here and was asked what music he would like played as he strode to the podium. He smiled and suggested the "Darth Vader Theme from Star Wars." Not a bad choice considering the way liberals had been reacting to his tenacious defense of the First Amendment in the face of their efforts to restrict free speech in the name of campaign finance reform.

Ultimately, of course, McConnell lost in Congress, but vowed that supporters of free speech would ultimately prevail because the Supreme Court, still capable of both reading and applying the words of the founders, would break the shackles his colleagues forged to fetter political speech. One wonders. If there is any domestic institution adrift today it is the U. S. Supreme Court. Supposedly moored to the Constitution, today's justices look beyond the Constitution as a matter of course to justify decisions that simply wouldn't be possible without doing so. They used to argue that the constitution itself is "an organic" document that must be constantly reinterpreted to bring it into line with a constantly changing world. At one level, of course, this view is correct. The founders did not and could not write immutable rules dealing with technological threats to freedom that no one in their day could predict.

Thus, it is unarguably true that among the court's most important roles has been applying the principles and intentions of the drafters of the constitution to cases arising out of a changing world.

For a long time, decisions seemed to be based on the assumption that the court could discern what the founders might have meant had they envisioned the world in which we live today. This gave their modern day interpreters a great deal of flexibility because the founders are, after all, long gone. Still, there has always been the niggling problem of the clear meaning of the words they left behind. The First Amendment, for example, says rather unequivocally that Congress shall pass "no law" abridging the right of Americans to exercise their free speech rights.

But, to paraphrase a former president, the meaning of the First Amendment has come to depend on the meaning of "no." Some believe it is difficult, if not impossible, to confuse the meaning of so simple a two letter word. But others almost from the beginning have argued that what the founders really intended to say was that Congress shall make "almost no" laws restricting free speech. Thus, the court has said the right to speak as we might does not extend to the right to shout "fire" in a crowded theater or to incite others to violence. The more "enlightened" among us today would go much further and restrict speech that might hurt the feelings of others.

This stretching and twisting of the meaning of the word "no" has gone on for a long time, but you can only stretch so short a word so far. So today, even some on the court itself question the relevance of the Constitution and look elsewhere for wisdom. Few of the people to whom they are no looking for wisdom live in the United States or have much more than a vague appreciation of the uniqueness of our Constitution.

I ran into McConnell shortly after the court's decision in Lawrence v. Texas, the sodomy case in which for the first time the majority leaned heavily on European opinion and court decisions to justify striking down a state statute, and suggested half-jokingly that the court might do the same thing in deciding his challenge to the new campaign reforms.

"Don't laugh," the senator said, "there are some who want it to do just that."

It turns out that there are a lot of people urging the Supreme Court to "reform" our democracy to bring it into line with the procedures and laws of such places as Europe, Russia and even Turkey. Indeed, a group of international election law "experts" from these and other countries have filed an amicus brief with the court saying their views should be taken into consideration because of their "citizenship in nations forming a community of shared democratic values, and the unavoidable impact of legal developments in the United States upon representative democracy worldwide."

Their advice: ignore the First Amendment. After all, they get along without such a foolish roadblock and have constructed electoral systems and procedures that balance speech against other "important" rights.

If the court spends more than a nano-second on such foolishness, it will be time to admit that the Constitution means a lot less than we once believed.