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First Amendment restoration

By Steve Lilienthal
web posted February 21, 2001

A funny thing happened on the way to the election last year.

The sponsors of the campaign finance reform legislation commonly known as McCain-Feingold (officially designated as the Bipartisan Campaign Reform Act of 2002 or BCRA) had inserted a provision preventing corporations, labor unions and non-profits from mentioning the names of candidates for Federal office in electronic advertising thirty days before a primary and sixty days before a general election.

Despite the intention of BCRA's sponsors to silence an important part of political speech before an election, the American people were still able to speak loudly and clearly through the development of the new 527 political groups. Organizations ranging from Swift Boat Veterans for Truth on the right and America Coming Together on the left would not be silenced. Whatever you think of the groups listed above and their agendas, the fact is we owe them a debt of thanks for exercising their right to free political speech.

Rep. Roscoe Bartlett (R-MD) proved his moxie by introducing the First Amendment Restoration Act (FARA) in the last session of Congress. FARA would restore the rights of organizations that are not political action committees to air broadcast advertising mentioning the names of candidates for Federal office in the thirty days before a primary or sixty days before a general election. Many House Members signed on as co-sponsors of FARA and the bill drew support from organizations as diverse as the American Civil Liberties Union, Gun Owners of America and the James Madison Center for Free Speech. However, it was introduced in the summer of 2004; the ticking clock and other pressing items of legislation prevented a FARA vote last year.

Despite the emergence of the 527s, the right of American citizens to associate and speak their minds during an election period is circumscribed by BCRA. Rep. Bartlett realizes this and that is why he decided it was imperative to reintroduce FARA in this session of Congress. He recently said:

"It is clearly a violation of our Founders' intent in adopting the First Amendment for the government to restrict Americans' ability to associate and engage in group communications and limit when Americans are free to mention, let alone criticize, a candidate for public office. Federal government restrictions of Americans' access to information about political candidates would be anathema to our Nation's founders."

Many important issues are before Congress this year. It would be very easy for conservatives to decide to take a pass on FARA in favor of other important issues. "After all," the conservative could say, "one can always form a 527." It would be wrong to think that way. If we are willing to let an abridgement of our First Amendment right to free speech slide, bit by bit our rights stand to be whittled away. Rep. Bartlett noted that already much damage has been done to the Tenth Amendment and how difficult it is to reverse course after decades of unconstitutional precedent has been established.

True conservative should be Constitutionalists. The Founders of our country through the First Amendment wanted to make sure that no American would be denied the right to speak his mind about the course of public affairs in our nation. That right encompasses not just individuals but also those Americans who own or work for companies, belong to labor unions or are members of non-profits.

James Madison said in a 1788 speech, "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." BCRA's limit on the right of corporations and labor unions and non-profits to mention candidates for federal office in electronic advertising in the days leading up to a primary or general election represents one small abridgement.

FARA represents a prudent defense of the First Amendment rights of Americans. We should speak up now in its behalf. Better now than thirty days before a primary or sixty days before a general election when our right to free political speech is just a bit crimped.

Steve Lilienthal is Director of the Center for Privacy & Technology Policy at the Free Congress Foundation.

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