Dean Esmay links to
this campaign by Kim du Toit. And I say: sign me up!
Red or Blue, free speech is for you! Not just for Congress or "The Press". It's for everybody.
Seems pretty plain to me...
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment has been used to defend all sorts of speech:
Now that's far from the gamut of First Amendment law. I cherry-picked these cases to ask a question.
Irrespective of your view of the merits of any of these cases, can anyone
seriously claim that cases like these were foremost in the minds of the founders when they wrote the First Amendment?
Understanding the Bill of Rights
To me, the key to understanding
the Bill of Rights is what I think of as the Forgotten Amendment:
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Yeah, there's a controversial issue, right? You've heard lots of Supreme Court cases about it, huh?
Not.
So why is what seems like such a trivial issue ensconced right up there with Freedom of Speech and the Right to Keep and Bear Arms?
Well, because
the British had forcibly quartered troops in American homes.
Ya see, I'm an originalist. I think that you learn math and science best by
studying where it came from. And I think the same is true of laws and constitutions and amendments: if you want to understand what they mean you have to study what led up to them.
Originalism and the First Amendment
So what, pray tell, might have been some of the original reasons for the First Amendment?
Oh, I dunno...
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
...
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
...
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
(All emphases added.) The King didn't want the people to have a voice in their government. He ignored their petitions for redress. And he
forbade public meetings without approval; and at those meetings, discussion topics that did not meet with the governor's approval were forbidden. Publishers like Paine and Franklin and orators like Hamilton and Jefferson faced imprisonment and worse for disagreeing with the government. And that's the political environment which the First Amendment was designed to oppose.
In other words:
if the First Amendment protects anything, it protects political speech.
Period. End of discussion. Not open to debate. Sorry if you don't like that but that's the way it is.
The Money Canard
"But oh, all that money in campaigns," some say. "It's so corrupting."
Bull.
While it's a stretch to say that money
is speech, that's a convenient shorthand for a more complex but essential truth: money
enables speech, just as surely as hardware enables software. If you take away my computer, all the software in the world is useless to me, because I can't run it. And if you limit a candidate's money, you limit the candidate's ability to make his speech heard. If you limit my ability to donate money to promote an issue, you limit one of my most effective ways to speak on that issue (i.e., by adding my funds to the coordinated campaign to get a unified message out).
And incumbents then have a natural advantage, because they have more ways of getting their message out — ways that you and I pay for with our taxes. So limiting campaign funds serves to protect incumbents. Like they need any more protection: we already have one of the highest percentages of reelection of any government anywhere and any time in history.
"But then someone can just buy a campaign," some will cry.
Again, bull. Beyond enough money to make yourself known throughout the campaign area, there's no demonstrable correlation between money spent and elections won. Money enables speech, but speech doesn't guarantee victory.
If you don't like the effect of money in campaigns, the answer is
more money:
- Lift all limits on donations and spending by individuals.
- Require all donations and expenditures to be publicly disclosed on the Internet.
- When candidate Q takes money from the Space Nazis to place cartoon ads in cigarette cases distributed at day care centers, scream bloody murder and let everybody know about it.
If any candidate takes money from disreputable sources or spends it in disreputable ways, the public disclosure will ensure that everyone will know about it. If the voters don't care and elect a disreputable candidate anyway, that's their choice.
The Abmonination
So what does
the Bipartisan Campaign "Reform" Act of 2002 do? A lot of things. A lot of limits on fund raising and spending that infringe on speech in a general way, as above; but also some very specific and very odious speech restrictions:
The BCRA, and FEC rules, contain provisions related to television and radio ads that refer to a clearly identified federal candidate and are distributed (targeted) to the relevant electorate within a particular time period before an election. These are often referred to as "issue ads" because they have typically discussed candidates in the context of certain issues without specifically advocating a candidate's election or defeat. Under the new rules, such ads would now be considered "electioneering communications" and as such, may no longer be funded by corporations or labor organizations. Other individuals or groups who pay for these ads must report the activity and the sources of funds if the payments exceed a specific threshold.
The defining characteristics of an "Electioneering Communication" are:
The communication refers to a clearly identified candidate for federal office.
The communication is publicly distributed on radio or television (including broadcast, cable, or satellite) for a fee.
The communication is distributed during a specific time period before an election - within 30 days prior to a primary election or 60 days prior to a general election.
The communication is targeted to the relevant electorate - i.e. it can be received by 50,000 or more people in the district or state where the candidate is running for federal office. For presidential campaigns this means 50,000 or more people in a state holding a primary within 30 days or within 30 days of the start of the nominating convention.
So within 60 days of the general election, corporations and unions — both voluntary associations of individuals who share common goals — can no longer advocate for those goals if they mention a candidate in the process.
Exemptions
No other forms of communication (e.g. mail, telephone, Internet, etc.) are covered by these restrictions. News stories, editorials or commentary, and candidate debates are also not covered.
Ah, so "news" stories are exempted; and we've
never seen a news story biased against a particular candidate, right?
(Note: I'm
not advocating restrictions on news stories; I'm demanding no restrictions on anyone. "News" sources don't get special privileges that the rest of us can't have.)
Millionaire Candidates
The new law may raise the individual contribution limits for Senate and House candidates who are facing self-financed candidates if those candidates spend more than a specified amount of their own funds on the campaign. The increase depends on the amount that the self-financed candidate spends from personal funds, along with some other factors. The law also removes the limitation on national and state party committee expenditures on behalf of a candidate if the opposing self-financed candidate's expenditures exceed a threshold amount and other conditions are met.
Ah, so if the other guy has money, Mr. Congressman, you want all the rules dropped for you. Got it... (And just in case you think I'm being overly cynical,
look who's jumping ship on campaign finance reform, as
Ron Coleman points out.)
Who's to blame?
There's no "clean" party on this issue. Senator McCain is a Republican. Senator Feingold is a Democrat. The President who signed it and hoped the Supreme Court would sort it out is a Republican. The Supreme Court Justices who failed to sort it out were nominated by both Republicans and Democrats. If there's a party with clean hands here, it's probably the Libertarians; but they're not a serious national force, so they don't count. (With a fiasco like this, maybe they should be.)
This act serves to protect two entrenched interests: the incumbents, who have extra-loud voices due to their positions; and the big media, who pick and choose which voices are worthy of coverage. And if they misrepresent you within 60 days of the election? Oh, your power to respond is limited.
Meanwhile, the rest of us have our most effective voice — i.e., our money where our mouths are — vastly curtailed precisely during the run-up period where most voters start paying attention.
The offer
Kim du Toit, being a strongly conservative blogger, has offered free ad space to conservative campaigns, regardless of McCain-Feingold. And then, because he thinks this issue is important, he has encouraged liberal bloggers to offer free ad space to liberal campaigns.
Well, I'm not so easily pigeon-holed. Republican, Democrat, conservative, liberal... Call yourself what you will, and I'll find something to disagree with you on. (And on a good day, we might even find something to agree on...) And I think this issue is too important to distinguish between parties. It divides us into free speech supporters and free speech opponents, regardless of party.
Now my site doesn't get a whole lot of traffic: about 450 visits per week, give or take. So it's not exactly prime real estate. But following Mr. du Toit's lead, you can't beat the price. I don't normally display ads, other than for my own works; but from now until election day (November 7), I'm offering free ad space in the sidebar of my blog to any U.S. candidate in any election, subject to the following restrictions:
- The ad must be placed by an authorized representative of the candidate's campaign, with a verifiable email address that I can trace back to the campaign's web site. I'm going to ask the candidate to endorse free speech, so I have to be sure the person placing the ad has authorization to speak for the candidate.
- The ad will be placed under the following statement: "By placing my ad on this site, I, [CANDIDATE NAME], am declaring that the McCain-Feingold Campaign Finance Reform Act unconstitutionally infringes on the free speech of individuals and groups, and that I shall support any measure to repeal it or to declare it unconstitutional." I will require written or email confirmation that the candidate personally approves of that statement. I am willing to discuss alternative statements; but this offer is contingent on my approval of whatever statement will be displayed.
- The ad must contain no factually inaccurate statements, and specifically no libelous statements. The ad must contain no information that is not legally subject to disclosure. When in doubt, I will pull the ad; but I am willing to discuss the accuracy of any statement.
- This offer is open to all candidates, red or blue, agree with me or not, as long as the above terms are met; but since that may lead to ads supporting positions that I do not personally support, each ad will be followed by the following statement: "Martin L. Shoemaker supports [CANDIDATE NAME] in the battle for free speech for all Americans, but may not support [CANDIDATE NAME] on every issue. Acceptance of this ad does not count as an endorsement for [CANDIDATE NAME]." And while I rarely do political blogging of any kind, I reserve the right to blog in favor of or in opposition to the candidate. I remain my own man when it comes to the issues. However, in any blog post that may involve the candidate, I promise to prominently include the candidate's ad along with the post, and to remind readers that the candidate supports free speech.
- The ad must be provided to me as a BMP or JPG file no more than 150 pixels wide by 900 pixels high. I will host the image on my site, so that I can personally verify that it meets my criteria defined above. Links to images on your site will not be accepted; but to allow you to vary your message, I will accept one replacement ad per day. The ad shall consist of the image plus a link to the candidate's Web site.
If these terms are acceptable,
contact me, and we can start the process of advertising your campaign.
What's the catch?
There's only one catch: the candidate must unequivocally support responsible free speech in the political arena.
Well, there's
one more catch. Although Congress and the FEC currently
swear that McCain-Feingold will
never apply to blogs, some have urged that blog postings and voluntary ad placement and other such voluntary work should be counted as in-kind contributions to a campaign. In the (we hope) unlikely event that the FEC should reverse their opinion on this, let me make public the relevant portions of my current rate of pay. Like most self-employed consultants, I have a fluid rate schedule, varying depending on the nature, duration, and location of the work. For work on election campaigns from my location on a schedule of my convenience, my current rate is the federal minimum wage of $5.15 per hour for the first ten hours (rates negotiable for longer term work). Since the time required to place an ad is approximately 5 minutes, that means that the in-kind value of an ad placement on my site is 26 cents. (Should the FEC decide to count the ad placement as part of your Electioneering Communications under the BCRA, be sure to list the 26 cent in-kind contribution. I'm betting it will cost them more than 26 cents to verify the "contribution".)
UPDATE: You can also advertise on the following free-speech-supporting blogs:
Ya know... A lot of the big blogs (like
Dean's) have ad contracts that preclude them from participating. But it begins to look like a lot of little blogs can add up. There are over 20 participating blogs that I've discovered so far. If mine is average (and I have no idea if that's true or not, but lemme do the math), that's over 9,000 visits a week. Still no great shakes, but more than any one little blog will do. And at least one of those, Kim du Toit's, is a
lot bigger than mine.
