By Wendy Kaminer,

        Barack Obama is poised to become “our first president who is a civil libertarian,” Jeffrey Rosen wrote hopefully and not without reason, less than 6 months ago.  But it didn’t take long for the audacity of politics to expose the naivete of hope.  Today, given Obama’s support for the grossly and gratuitously anti-libertarian FISA amendments (painstakingly explored by the tireless Glenn Greenwald,) civil libertarians are likely to vote for him with a lot more resignation than enthusiasm.  Today, Obama is merely poised to become a president who would be more sensitive to civil liberty than John McCain and would leave us with a centrist Supreme Court rather than a right wing extremist one.  That’s change we can manage to tolerate. 

        Too bad that a candidate who ran against political cynicism is now encouraging it, but we should have known better than to hope that a presidential candidate would look favorably upon limiting presidential power.  It’s no coincidence that a nation founded on a dream of individual liberty (for some) over 225 years ago still awaits a civil libertarian president.  Jefferson had his moments, as Harvey Silverglate suggested here, but no slaveholder can be called a civil libertarian.  James Madison had his moments too, but both Jefferson and Madison made their primary contributions to liberty in imagining the nation, not presiding over it.  If Obama wins the presidency (and I continue to hope that he does) he will (like virtually all presidents) guard the prerogatives of power that civil libertarians seek to restrict.

        Congress and the courts will often fail us too (as passage of the FISA amendments showed,) but for all their faults, Congress and the courts probably offer the best checks against the apparently irresistible temptations of the imperial presidency.  Even a right of center Supreme Court has required the Administration to provide at least minimal due process to Guantanamo detainees. Even the reliably craven Congress includes some good civil libertarians (see who voted against the FISA amendments,) and Democrats in Congress derive whatever strength they can muster from numbers.  The ’08 Senate races are perhaps as important as the race for the White House, which civil libertarians should always regard as alien territory.  Approach the president as a friend or allow him to embrace you as one, and instead of opposing his power you’ll probably be seduced by proximity to it.  Civil libertarianism is a game for outsiders.

 

NBC reports that a group of abortion protesters disrupted a Barack Obama rally in New Hampshire. Though the police came to usher the protesters out, Obama’s response seems to suggest that he understands the old notion of disagreeing with you but fighting for your right to say it:

“Let me just say this though. Some people got organized to do that [protest]. That’s part of the American tradition we’re proud of. And that’s hard too, standing in the midst of people who disagree with you and letting your voice be heard.” (emphasis added)

As a former president of the Harvard Law Review and then lecturer in constitutional law at the University of Chicago Law School, Obama surely has an understanding of what the First Amendment entails. If he gets the nomination, it will be interesting to see his views on civil liberties come out.

Via Reality-Based Community

There was a show-tune ditty that was popular back when I was a kid, which younger readers might also identify as the theme song to Married With Children. “Love and marriage,” went the lyric, “go together like a horse and carriage. This, I tell you, brother: You can’t have one without the other.” In quite the same way, in the context of electoral politics, you can’t have speech without money.

While the internet has made engaging in free speech without a lot of money more feasible than ever, it remains true—especially in the context of campaigning for public office—that money remains the mother’s milk of politics. Of course, that is why the monthly reports on the relative viability of various candidates in both major parties focus not so much on opinion polls, but on fund-raising totals. Even though the amount of popular support a candidate enjoys ultimately affects his or her success at the ballot box, candidates without substantial cash on hand find it prohibitively difficult to make their case.

The problem is that the Bipartisan Campaign Reform Act— better known as McCain-Feingold—has significantly interfered with the ability of third party candidates and other political mavericks to gather together enough funds to inject dynamism and fresh ideas into a political system badly in need of change. (That act recently survived its latest examination by the Supreme Court even though its impact on pure political speech was significantly diluted.)

It’s hard to avoid the suspicion that Congress’ professed concern about the corrupting role of money in the political system may simply be a case of crocodile tears, since the percentage of incumbents being re-elected is about as high these days as it’s ever been. This logic leads to the conclusion that the advent of campaign financing law—beginning with The Federal Election Campaign Act of 1971—failed to create a cleaner, more vigorous political system. Instead, it led to a system in which the obstacles that new and maverick candidates face when launching electoral challenges to incumbents have become so overwhelming that during every election cycle nearly all incumbents get re-elected to the House and Senate. The cost of challenging an incumbent has skyrocketed. All of this might lead a cynic to conclude that campaign finance “reform” is simply a palatable cover for incumbent protection.

The reality of campaign finance restrictions is that they make it harder, not easier, for new voices to be heard, or for challenges against incumbents to be launched. This has occurred because the restrictions make it difficult for newcomers to the political system to overcome the inherent fund-raising and communications advantages of incumbency. In the celebrated 1976 case of Buckley v Valeo, the Supreme Court upheld campaign finance restrictions in principle and rejected rejecting an overall First Amendment attack, even though the court held that certain kinds of money flows, such as personal funds spent by a wealthy candidate for his own campaign, could not be restricted. I hear my fellow liberals chant about the necessity of freeing politics from the grip of big money, but in fact big money manages rather well to find its way into the political system. It’s those who oppose business-as-usual who are unable to buy the time and venues for being heard by the voters.

In addition to this reality comes what should be obvious to readers of The Free For All—that restricting campaign contributions is a backdoor way of restricting free speech that is, or should be, protected by the First Amendment. This has long made me a supporter of the ACLU’s proposed solution. In 2001, it wrote a letter to the Senate opposing McCain-Feingold, in which it noted sarcastically that the act was “misnamed as ‘The Bipartisan Campaign Finance Reform Act of 2001,’” and was in reality “a destructive distraction from the serious business of meaningful campaign reform.” What is needed, noted the ACLU’s letter, is “a more First Amendment-friendly way to expand political opportunity.” This would entail “public financing for all qualified candidates…without the imposition of burdensome and unconstitutional limits and restraints” on political fund-raising. The ACLU’s commonsense – and constitutional – position on campaign finance is consistent with the position championed for decades by the organization’s now-retired executive director, Ira Glasser, who recommended that the law remove the ceiling from political fundraising by abolishing restrictions on how much a candidate may raise and from whom. Instead, the proposed solution would institute a floor – a minimal amount of public funding for viable and credible candidates so that they might increase the amount of political speech heard at election-time. “Examinations of many campaigns,” testified Glasser before the Senate Committee on Rules and Administration on 3/22/2000, “suggest that if the floor of support is adequate, there is no need to impose a ceiling.” The goal, after all, should be to expand rather than contract the amount of political speech. Liberals who support campaign finance laws that restrict free speech by restricting money are barking up the wrong tree. All they will assure is that we won’t be able to throw the damned rascals out.

         Before the court this month is the disastrous McCain-Feingold Act of 2002, the most momentous and well-publicized, and also the most futile, of the many congressional efforts over the last thirty years to limit the extent to which money influences politics. In a 2003 decision that has been rightly derided by free speech advocates, the court by a vote of 5-4 upheld the constitutionality of the Act’s ban on “soft money” and on TV ads that mention a candidate for federal office within 60 days of a general election.

This time around, the court is debating McCain-Feingold’s exception for certain “issue” ads, which are not considered political endorsements when they do not specifically mention the name of a candidate. It’s difficult, if not impossible, to separate ads touting issues from ads touting pols who support those issues. The insanity of this murky attempted boundary is what has occupied an enormous amount of time of judges, bureaucrats, and lawyers – all without achieving any clarity. The constitutionality of this provision is being challenged by the nonprofit Wisconsin Right to Life, an anti-abortion group.  The FEC penalized the group last year for airing ads urging Wisconsinites to contact the state's two U.S. senators and tell them not to filibuster President Bush's judicial nominees. Because one of those senators, Democrat Russell Feingold (coincidentally, one of the campaign finance reforms act’s namesakes), was up for reelection, the group was told that the inclusion of Feingold’s name turned its grass-roots anti-abortion campaign into an "electioneering communication" that could not be legally aired before the election.

          As the Wisconsin Right to Life example proves, the McCain-Feingold act, although well-intentioned, clearly tramples on one of the most fundamentally important guarantees of the Constitution: the right for a citizen to criticize one’s government and to petition for what the First Amendment calls “a redress of grievances.” In my view, there needs to be a major shift in the debate over fair elections and a newfound emphasis on restoring some sense of voter and candidate equality and access to the system without sacrificing free speech. Lawmakers should repeal campaign financing restrictions and instead institute a modest system of public financing of campaigns. Every candidate who demonstrates his or her credibility by collecting enough signatures would be eligible for public money to run a campaign. The American Civil Liberties Union has been proposing a system like this for decades, thus far to no avail. What the current system has gotten us is not a diminution in the role of money in politics – that would be simply impossible to achieve in a free society – but, rather, a system where the benefits of incumbency are huge because current officeholders have so much more access to money and to the news media than do the challengers. If we want to throw the bums out, we need to open up the system by getting rid of McCain-Feingold and other such ill-considered and unconstitutional restrictions on the free speech rights of the electorate.

 Meanwhile, Congress should abandon this absurd notion that support for issues and support for candidates can, or should, be separated. Citizens and political groups should be able to vocally support candidates however they see fit.. Let free speech and fair elections both flourish.

When rules are written to cut off money in one arena, that money inevitably finds its way into the electoral system through a back door. It’s a constant game of cat-and-mouse. Only a strictly enforced publicly funded campaign system could put this tiresome game to an end and, incidentally, put some of the army of campaign finance lawyers out of business.

        We have had some form of campaign finance restrictions for many decades, with the restrictions becoming stricter and stricter with each attempt at “reform.” In order to assess the impact of this effort to “wring big money out of politics,” one has simply to compare the quality of our politics, our political discourse, and our office-holders, with each passing decade. I rest my case.