The Big Mistake
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Wading through the 156 pages of Judge Colleen Kollar-Kotelly’s memorandum opinion in the case of Shays v. FEC, we are tempted to criticize the judge for her decision to ratchet up the campaign speech regulations of the McCain-Feingold law. We’re also tempted to criticize Rep. Christopher Shays of Connecticut and Rep. Martin Meehan of Massachusetts, the two congressmen who sponsored Mc-Cain-Feingold in the House and who brought the lawsuit on which Judge Kollar-Kotelly ruled over the weekend.
Instead, what we find ourselves wondering is what could have been on the mind of President Bush, who swore an oath to defend the Constitution, including the First Amendment that prohibits the Congress from abridging the freedom of speech, the press, petition, religion, and peaceable assembly – but who, by signing the McCain-Feingold law in 2002, set events in motion for the conversion of the First Amendment from a clear bill of freedom to a complex half-measure that is left to be decoded by federal bureaucrats and judges pondering such matters as the Levin amendment.
Named for Senator Levin of Michigan, this is the amendment to McCain-Feingold that “allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and ‘Levin funds’ – that is, funds raised within an annual limit of $10,000 per person.” These judges and bureaucrats will have to interpret in great detail the definitions of “solicit” and “agent” and “voter identification” and “coordination.” Can one imagine what Madison and the rest of the framers would have thought had they been told, when crafting the magnificent First, that this would be its fruit?
It’s ironical that the news of the judge’s order directing increased regulation of campaign speech on the Internet came within days of the famous victory of the independent political journalists on the Web who forced the once-respected Columbia Broadcasting System to apologize for having fallen for faked documents smearing an American president in the middle of a close contest. A judge has just left CBS free to smear away, ruling that the McCain-Feingold regulations must be written in such a way as to crack down on smaller operators on the Internet.
This is a metaphor for the larger problem with any regulations on political speech. Big parties, incumbent politicians, and powerful interest groups will be able to hire lawyers and navigate the definitions of Levin funds and coordination. The press and broadcast magnates have carved out their own exemption. But the challengers and small parties and little citizens’ groups and underdogs and ordinary Americans will have a harder time making their voices heard because of the law Mr. Bush signed. Just as Mr. Bush was extolling to the United Nations the virtues of democracy and political freedom, a judge was using a law he signed to roll them back here in America.