At least, that is the headline we would expect to see in the next few days, if we thought that the Campaign Legal Center could be taken seriously. Writing today in The Politico, Tara Malloy of the Campaign Legal Center – an organization founded to promote restrictions on political speech and to defend them in court – steals a line from we here at CCP and says, "The First Amendment establishes the right to speak, not a right to limit the speech of one’s adversaries."
Of course, that has been our principle all along. Now that the Campaign Legal Center agrees, we welcome them to disband, or better still, use their resources to join us in the campaign to protect the "right to speak" by fighting the efforts of Democracy 21, Common Cause, Public Citizen, U.S. PIRG, the League of Women Voters, numerous politicians, and others to "limit the speech of one’s adversaries." Unfortunately, we don’t see that happening, because we think it is pretty obvious to any reasonable observer that Ms. Malloy and the Campaign Legal Center are not to be taken seriously when they start talking about constitutional principles and the First Amendment.
Malloy’s op-ed was discussing the case of Davis v. Federal Election Commission, now before the Supreme Court, challenging the "millionaires amendment" of the McCain-Feingold law. This part of the law has nothing to do with preventing political corruption, the basis on which the Supreme Court, egged on by Campaign Legal Center, upheld the law. Rather, this is about allowing the government to step in and put its thumb on the scale, in order to "equalize" campaigns – in this case against candidates who, spending their own money, are uniquely free from any possible reliance on "special interests" for campaign contributions.
The Millionaires Amendment raises contributions to three times the normal amount where a candidate faces a self-funded millionaire, plus it removes restraints on coordinated expenditures by political party committees in that situation. Malloy and CLC claim that the Millionaires’ Amendment merely allows more speech, because it raises contribution limits for some. While we’re sympathetic with that and appreciate CLC’s belated admission that contribution limits are meaningful restrictions on political speech, the fact is that Malloy and CLC, as a matter of tactical convenience, want the Court to uphold the Millionaires Amendment precisely to expand the grounds on which the government can regulate the speech of others. In their tireless efforts to limit the speech of the rest of us, they want to push beyond the narrow justification of "corruption" recognized by the Supreme Court to address any type of political speech they don’t like, in order to create the "equal" regime that they think know exists and that they think they have the expertise to impose on the rest of us. CLC hopes to be able to use the rachet of "corruption" to limit speech, then remove those limits for favored speakers and modes of speech, on the grounds that removing limits – even if only for categories of favored candidates and donors and favored modes of speech – cannot violate the First Amendment. Need we point out that this concern – that the government will regulate particular types of speech to favor some speakers over others – was at the core of the the First Amendment?
In fact, if the Court is serious – and if CLC were serious interested in protecting the First Amendment – it will recognize that the Millionaires Amendment exposes and undercuts the anti-corruption rationale of the current contribution limit level. If a $6900 contribution and unlimited coordinated party spending are not corrupting when a candidate faces a well-financed challenger, then surely they are not corrupting at other times. And the source of that well-financed challenger’s funds surely does not affect the "corrupting" effect of contributions to his opponent. In short, for all their protestations to the contrary, neither CLC nor the Congress that passed BCRA really believes that a $2300 contribution limit is necessary to prevent "corruption" at all. They just want to limit speech, but in the "right" way – their way.
We are delighted to see something sensible come out of the Campaign Legal Center, and we couldn’t have said it better ourselves. How’s that go again?
"The First Amendment establishes the right to speak, not a right to limit the speech of one’s adversaries."
