Posted by Eugene Volokh:
White House Press Secretary
calling for restrictions on political speech?
Aaron Swartz points to this [1]press conference:
Q There's a new ad by MoveOn.org that talks about -- that
criticizes Bush's record in the National Guard. What's your
response to that, and what do you say to Harkin, who called Cheney
a coward for not serving?
MR. McCLELLAN: We have been on the receiving end of more than $62
million in negative political attacks from these shadowy groups
that are funded by unregulated soft money. And the President has
condemned all of the ads and activity going on by these shadowy
groups. We've called on Senator Kerry to join us and call for an
end to all of this unregulated soft money activity. And so we
continue to call on him to join us in condemning all these ads and
calling for an end to all of this activity. . . .
Q But, Scott, the MoveOn.org ad, back to that. Senator Kerry
denounced the ad specifically, saying it's not indicative of their
-- the way they feel about the Bush service in the National Guard.
He specifically denounced the ad, which is something that they're
saying the Bush-Cheney campaign has not specifically done about the
Swift Boats ad.
MR. McCLELLAN: Let's be clear here. What the senator did was, he
said one thing at the same time his campaign was doing another. His
campaign went out there and essentially promoted this false
negative attack at the same time Senator Kerry was saying he
condemned it. The President has condemned all of this kind of
activity, and he should join us in doing the same and calling for
an end to all of it. Apparently he was against soft money before he
was for it. And the President thought he got rid of all of this
unregulated soft money activity when he signed the bipartisan
campaign finance reforms into law. And so it's another example of
-- the senator's latest comments are another example of him saying
one thing and doing another.
I certainly hope that the Administration is not indeed calling for "an
end" -- a legal end, via an extension to the Bipartisan Campaign
Reform Act -- to people pooling resources to express their political
views, including their views about candidates. You can call it "soft
money," but it's speech, of the sort that political movements such as
the antislavery movement, the temperance movement, the civil rights
movement, and many other movements (good and bad) have engaged in.
Without such speech, who gets to speak effectively, in the large
traditional media? The media itself; the parties; and the politicians
who have the infrastructure to raise hard money in $2000 chunks; and a
few super-rich people (unless they're shut up, too). People who care
deeply about a subject, enough to pool even tens of thousands of their
dollars with others who care equally strongly, would be shut out.
This sort of speech doesn't involve campaign contributions to
officeholders, which Buckley v. Valeo has held can be restricted (in
part precisely because such restrictions leave open alternative
channels, such as independent expenditures). It isn't even corporate
expenditures, which Austin v. Michigan Chamber of Commerce and
McConnell v. FEC held -- wrongly, I think -- to be restrictable. This
is independent spending on political expression, which Buckley
specifically held was constitutionally protected, by a 7-1 vote that
include liberals, moderates, and conservatives in the majority (the
only dissenter was Justice White). I certainly hope that McClellan's
views don't represent the policy agenda of the White House.
References
1. http://www.whitehouse.gov/news/releases/2004/08/20040818-2.html
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