Frank’s Case Book

It was not as if both the circumvention of “campaign finance reform” and the effect of this purported reform on the political process had not been foretold. When Congress passed the McCain-Feingold Campaign Finance law and when the political parties, as a consequence, were financially emasculated, two things happened. First, those who wanted to exercise their free speech rights and influence the political process, by using their own money to fund political causes, found other modalities to join together and organize. Second, the ability to control their own political message moved away from candidates and parties to other, usually more extreme groups. As a consequence, the electorate has become more polarized.

Section 527 of the Internal Revenue Code allows independent groups to accumulate unlimited amounts of money for the purpose of voicing their opinions, so long as these organizations do not explicitly call for the election or defeat of a candidate. Of course, one can directly influence an election without specifically calling for the defeat or election of a particular candidate. The only way campaign finance limitations can pass constitutional muster under the current Supreme Court, is to argue that there is a strong public interest in avoiding political corruption. As a consequence, independently rich people can finance their own campaigns irrespective of campaign finance laws; they cannot corrupt themselves. This puts the less affluent at a distinct disadvantage.

If a campaign finance law is written too broadly, then it becomes harder to argue that the law is only avoiding the appearance of corruption and is not just limiting inconvenient speech. If such a law is written more narrowly, it must allow alternate avenues for political speech. Hence, money flows to these “527” groups.

These 527 groups tend to attract the most passionate and sometimes the most extreme partisans. Unlike parties that try to field candidates across the entire country, and, therefore, tend to eschew the most extreme viewpoints, these 527 groups are narrowly focused institutions who care less for party affiliation and more for ideological purity. As money and speech flow to these outside groups, the moderating and ameliorating influences of traditional political parties attenuate.

In the current election cycle, we now have the insertion of millions of dollars through these groups. So long as these groups on the Left were out spending groups on the Right by six-to-one and so long as their ads suggested that Bush was lying to the American people, the main stream press did not seem too concerned. However, when a modestly-funded group of Vietnam veterans challenges Democratic challenger Senator John Kerry’s description of his Vietnam service, the world wrings its hands about the pernicious influence of these independent groups. Republican Senator John McCain and, to his discredit, President George Bush are pushing to limit 527 groups. At the same time, the Kerry campaign is mounting its own effort to silence inconvenient dissent, by trying to persuade publishers not to publish the book Unfit for Command. Politicians should rarely be trusted to determine which speech and expression are permissible.

For the purposes of argument, let us assume that those veterans who are now criticizing Kerry are mean-spirited ideologues who hate their wives and kick their dogs, the ethos of a free society still grants them the same permission to speak as billionaire George Soros and his Leftist followers. Seeking additional ways to limit 527 groups either will not succeed or the effort will limit First Amendment rights.

Perhaps the only way to restore the moderating influence of political parties is to abandon the current regime of campaign finance reform, save for the public reporting of donors.

It has been said that here are really only two choices with respect to campaign finance reform. Either such “reforms” will be ineffective as people and associations find alternative routes to convey their message and ideas, or they will violate First Amendment protections. Campaign finance reform cannot be successful in its own terms unless there are some messages that people and groups cannot convey under a reform regime that they can now.

In upholding key provisions of the Bi-partisan Campaign Reform Act (BCRA) in McConnell v. Federal Elections Commission (FEC), the US Supreme Court has managed to whittle away at the First Amendment. This is especially true with respect to the provision that prevents third parties from running ads critical of candidates within 60 days of an election.

The Constitution is very unequivocal. The First Amendment explicitly states that “Congress shall make no law … abridging the freedom of speech …or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It does not say that these rights can be abridged, limited, or constrained if convenient of if some other government purpose is at stake. Usually limitations, if they are upheld at all, must pass severe tests.

There are some forms of expression which fall outside of protected speech. For example, it is constitutional to prevent the announcement of secret troop movements if such an announcement presents a “clear and present danger.” This is a very high standard and does not prohibit even publication of all classified material. The US Supreme Court upheld the publication of Pentagon Papers because the standard is not met.

Other times, governments are allowed to limit the “time and manner” of speech in the name of other government priorities. For example, the National Park Service may grant licenses for protests on public property as a way to address concerns of public safety. However, any such restrictions must be generally applied and must be content neutral. However, the BCRA targets particular speech. It bands the purchase of broadcast “electioneering” ads within 60 days of an election. Such speech is defined as any speech that “refers to a clearly identified candidate for federal office.” There are no restrictions on other types of speech. The content neutrality test is not met.

Moreover, in weighing whether time and manner provisions curtail First Amendments rights, courts must apply “strict scrutiny.” Any time and manner restrictions must serve a compelling interest and must impose the minimum restrictions possible. The Court realized that the under such standard, BCRA would not survive. Instead, in McConnell v. FEC, the majority said it could bypass the necessity of strict scrutiny on First Amendment restrictions to allow Congress “to protect the integrity of the political process.”

This could represent the first step in greater erosion of First Amendment protection. The goal of protecting the “integrity of the political process” is sufficient loose to allow all manner of mischief. Might a future Congress decide to restrict ads that mention a candidate 90 or 120 days before an election instead of just 60 to protect the “integrity of the political process?” Might a future Congress ration the number of press ads, fliers, or e-mails that could advocate the election or rejection of a candidate to protect the “integrity of the political process?” How could this standard be limited to broadcast ads? What if in the future most people receive most of their information from the Internet? Indeed, the BCRA limits communication that is sent via “broadcast, satellite, or cable” and it is not hard to stretch this to cover the Internet. Under the vague standard of protecting the “integrity of the political process” there is no principled way to limit Congress from constraining political spending and hence speech on anything from the Internet to bill boards.

The saddest point is that, if anything, protections on political speech should enjoy the highest level of protection. Despite any positive social consequences that might accrue from limiting simulated child pornography or sexually explicit programming on cable broadcast, the US Supreme Court has accorded these forms of expression First Amendment protection. The vital public good of unrestrained speech is so valuable even these vulgar and relatively unimportant expressions are not balanced against any positive social good that might accrue from even modest limitation of these forms of expression. How much more important must be political speech; speech the First Amendment was designed to protect? Apparently, such speech is not very important to this Court.

The majority in this case tries to avoid bumping against the walls of First Amendment protections by arguing that no speech is being limited, only spending on the means to procure such speech. However, the means to speech must be defended if speech is to be protected. Except by getting up on a soap box (assuming the soap box is free) and orating or handwriting a pamphlet (on free paper) any speech requires the interaction of people and that interaction is often mediated by money. As Justice Antonin Scalia in his dissent explained: “An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mod of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them.”

The Founding Fathers would have been familiar with such circuitous methods to limit expression. That is why the First Amendment was so categorical: to prevent the very sort of usurpation of freedom endorsed by the Court in this decision. The Stamp Act of 1712 in Great Britain applied a tax on newspapers resulting in increased prices and decreased circulation. This was done with the express purpose of punishing and limiting negative coverage. Under the jurisprudence of the present Court, freedom of speech or of the press was not being regulated because the economics of speech were constrained, but not necessarily the content. When Great Britain applied similar legislation to the Colonies in Stamp Act of 1765, it probably hastened the American Revolution.

The BCRA may have been passed under the auspices of attempting to curb corruption, but its true intent is to curb speech, particularly speech directed against incumbents. In explaining the need for the BCRA Senator Barbra Boxer of California complained that “so-called issues ads are not regulated at all and mention candidates. They directly attack candidates without any accountability. It is brutal … We have an opportunity in the … [BCRA] to stop that…” It is a measure of how drug of campaign finance reform has so numbed the mind of a Senator that she can even utter the words “regulate” and “issue ads” in the same sentence. Clearly speech, i.e., critical political speech is what they are trying to regulate.

If Congress were really concerned about the effects of corruption, they would have not have constrained non-profit corporations like the National Rifle Association or the American Civil Liberties Union. Non-profit organizations are not usually looking for graft but to “petition the Government for a redress of grievances.” If Congress were concerned about corruption, why are third parties unassociated with political parties or candidates so regulated 60 days before an election.

Indeed, the proposition that money induces corruption itself is not borne by the facts. Usually money follows candidates with certain positions rather and driving candidates to other positions. A recent study by Ansolabehere et al. of the Massachusetts Institute of Technology published in the Journal of Economic Perspectives demonstrates that “campaign contributions as a percent of GDP [Gross National Product] have not risen appreciably in over 100 years — if anything, they have probably fallen” and “that when one controls for unobserved constituent and legislator effects, there is little relationship between money and legislator votes.” They found that “Legislators’ votes depend almost entirely on their own beliefs and the preferences of their voters and their party. Contributions explain a miniscule fraction of the variation in voting behavior in the US Congress.”

The final principle of campaign finance reform that appears always to be true is that laws will be so written as to increase the power and security of those writing the bills: incumbents. Incumbents enjoy natural advantages. They usually have high name recognition and their duties require them to be constantly in the public eye. It is a conventional wisdom for those practiced in the martial arts of electioneering that challengers often have to spend substantial sums just to achieve the same name recognition as incumbents. The more speech is limited, even if it is limited even-handedly, the more incumbents are protected from accountability. In the short run, this will benefit Republicans at the national level, but only at the cost of liberty. One day Democrats may enjoy a majority of incumbents and Republicans will suffer a similar fate. It seems that Democrats were the most fool hardly. They sacrificed political liberties without even the advantage of temporary electoral benefit.

BCRA also increases the power of the major media, because they will now alone be the filter of campaign messages, particular in the last 60 days of a campaign when independent ads by third parties endorsing or criticizing candidates cannot be purchased. It is ironic that the press that enjoys the freedom accorded by the First Amendment were among the most vocal proponents of limiting the speech of others.

The media fail to appreciate that there is no principled distinction between limiting third party from “electioneering communication” and limiting similar expressions from the press. In name of protecting the “integrity of the political process,” why could not Congress limit editorials by the press 60 days before an election? If not, could not wealthy corporations and individuals purchase media corporations and use them for electioneering. Indeed, in the early days of the republic, newspapers where generally organs of political parities.

Congress was irresponsible in passing BCRA, but sometimes Congressmen are like lemmings following the popular lead of the press. After all, at best they are only vote in 535 and can separate themselves emotionally from responsibility for their actions. Five of the nine justices on the Supreme Court should now be embarrassed by their complicity in limiting speech. We can only hope this aberration will be undone in some future decision when the Court is compelled to revisit the issue as Congress becomes more emboldened to fend away criticism via legislation. The severest criticism should be leveled at President George W. Bush who probably in his heart of hearts believed the BCRA was unconstitutional. He shirked his responsibility to “preserve and protect” the Constitution. He hoped that the courts would be shield him from the responsibility of taking the unpopular action of vetoing the legislation. He knew better, but did not act.

One sometimes wishes that the Left would lavish a proportional amount of attention on the 11 million prisoners suffering under Fidel Castro as the warden of an entire island as they do to the 660 prisoners held at the US Base in Guantanamo, Cuba. In the last Administration, the Left glowed with smug satisfaction when the only one forced by the United States to enter Cuba was a young boy at gun point. But that was another issue for another time.

What is the appropriate way of dealing with individuals captured on the battlefield in Afghanistan and now detained at Guantanamo? The laws of war were agreed to in an age when powers, especially European powers, fought pitched battles between groups of soldiers. The rules specifying the treatment of captured combatants arose in a context of a clearer separation between soldiers and civilians.

Soldiers are afforded immunity from normal civil laws against killing and destruction. In exchange for this immunity, they are also liable to be the indiscriminate targets of other soldiers. Under the rules of war, civilians are also protected. They are not normally the objects of attacks. This is not to say that civilians are never killed, but under the rules of war, they are not to be the deliberate objects of aggression. When these two categories get blurred, risks increase for both soldiers and civilians, particularly civilians. If captured, soldiers become liable for criminal sanctions. If civilians are viewed as combatants then the dangers to those civilians that do not participate in aggression grows as it becomes more difficult for regular soldiers to distinguish combatants from civilians.

Nonetheless, over time it has become clear that some civilians do join in battle as irregulars. This was a particular problem in the US Civil War when the distinction between civilians, militia members, and soldiers blurred. Even regular soldiers were not always properly uniformed. According to Daniel Moran of the Center for Contemporary Conflict, the Union under the direction of Columbia University law professor Francis Lieber formulated the “Lieber Code.” “It declared that civilians who had organized themselves into `free corps’ in order to resist advancing Union forces should be treated as combatants, even if not in uniform. Clandestine violence by individuals remained subject to summary justice, however, as did any form of civilian resistance once an occupation had been established. ”

This distinction has been recognized and given international sanction in the Geneva Accords, Convention III Relative to the Treatment of Prisoners of War, (1949). Not only are uniformed soldiers to be accorded prisoner of ware status, so too are journalists and service personal, like truck drivers who service the soldiers.

“Members of other militias and members of other volunteer corps ” [when captured are to be treated as prisoners of war] … “provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

• that of being commanded by a person responsible for his subordinates;
• that of having a fixed distinctive sign recognizable at a distance;
• that of carrying arms openly;
• that of conducting their operations in accordance with the laws and customs of war.”

The Taliban soldiers and members of Al Qaeda have clearly not conformed with the last three conditions and have probably forfeited their right to prisoner of war status.

There really are two choices for the US. The Guantanamo detainees are either civilians or combatants, legal or not. If we treat them as civilians they would have to go through the judicial process and be prosecuted as criminals. This option would have two down sides. It would impose a large prosecutorial burden on the US. Were the US to impose punishment on what others might see as prisoners of war, it could also open the US for criticism. If captured, our soldiers might then be treated as criminals rather than combatants. So the continual treatment of these detainees as prisoners of war, perhaps indefinitely, would seem to be the appropriate course. Of course, there are some other issues. Under prisoner of war status for these irregulars, is the US required to make an accounting of prisoners and to whom? There is no formal government to make a report to. Could such an accounting provide important intelligence to Al Qaeda that relies exclusively on intelligence and deception?

Article I, Section 8 of the US Constitution grants Congress the power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” They should exercise this authority. Although the Administration would certainly balk at any formal procedure for dealing with the irregular prisoners of war that might limit their discretion, Congress should statutorily spell out procedures for dealing with such irregular prisoners. The military has obviously been working out an ad hoc set of procedures. Statutory measures would protect the military from charges of arbitrariness and emphasize American commitment to the rule of law.