(Editor's note: This commentary originally appeared in the July issue of Greater Lansing Business Monthly.)
Prominent political philosopher Francis Fukuyama recently warned of a “down escalator” of institutional decay in developed democracies. A stark example in this country is the threat to political free speech represented by the “weaponization” of campaign finance law by political and government careerists practicing “politics by other means.”
Recent examples include: The IRS abusing its power to silence opponents of the bipartisan political class; a campaign finance-related political witch hunt in Wisconsin orchestrated by the Milwaukee district attorney’s office; using donor disclosure mandates to persecute a prominent gay marriage opponent; and the bullying “investigations” of some Romney donors in 2012 by political operatives responding to a virtual “Will no one rid me of this turbulent priest?” speech by the president of the United States.
The latest threat is a constitutional amendment sponsored by 41 U.S. Senators that would give Congress unlimited authority to regulate “the raising and spending of money and in-kind equivalents with respect to federal elections.” One prominent opponent noted how this could be used to ban Sierra Club ads criticizing politicians’ environmental policies, NRA voter guides or pastors urging their flock to get out and vote.
Campaign finance regulations were originally pitched as prohibiting straightforward “quid pro quo” deals between special interests and politicians. How far they have expanded is seen in the 2008 prosecution by the federal government of a group of citizens who pooled resources to broadcast a movie critical of Hillary Clinton within 30 days of an election.
Such activities are characterized by activists as “big money in politics” and “corporations buying elections.” Yet had their preferred policy been in place in 1860 it would have led to absurdities like forcing copies of “Uncle Tom’s Cabin” off bookstore shelves during that year’s presidential campaign.
Justice Brandeis was right, the answer to speech you don’t like is “more speech, not enforced silence.” The federal judge in a civil rights lawsuit filed by one of the targets in the Wisconsin abuse referenced above scolded the state with a warning, “the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself.”
The growing labyrinth of government campaign finance regulation is an institutional “down escalator” for the political free speech rights at the core of this democracy.
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Jack McHugh is senior legislative analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich.
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