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Drew's Cluelessness

Please don't let her anywhere near the First Amendment!


Posted Sunday, May 7, 2000

        Elizabeth Drew wants it known that she's tired of the "myths" opponents of campaign finance reform "regularly trot out in order to defeat it." In the Washington Post last month, she sets out to expose these "phony arguments" for the benefit of "commentators who ought to ... know better" and members of Congress who don't "do the homework that would enable them to combat these shibboleths." There "can be no honest discussion of the issue that isn't based on honest assumptions," she declares.

        One "myth" Drew especially wants to expose (since, she admits, it has "put reformers on the defensive") is the idea "that proponents of reform--in trying to put curbs on phony 'issue ads'--are seeking to deny people their right of free speech."

        Not at all, Drew assures us. As she explains it, it's really quite simple: The courts have, so far, said the First Amendment protects individuals and political action committees (PACs) that spend money on political speech (e.g., ads) "as long as they did so independently of the candidate who would benefit." The idea that reformers would disturb this exercise of speech is ... well, a myth. "[N]o one is trying to regulate ... truly independent ads by individuals and PACs." Drew explains that reformers are only trying to ban campaign ads (disguised as "issue ads") funded by unions and corporations.

        So far, so good. But then Drew confronts the question of what is a "truly independent" ad. She's no fool. She knows that "in the real world," supposedly "independent" players don't have to actually have "direct conversations" with a candidate's campaign to help it out--"it's no great trick to find out what kind of ad would be helpful to a candidate and where." Taking "a recent example," she addresses the case of Sam Wyly, the Dallas businessman who ran professedly independent ads in New York attacking John McCain's record on the environment. Wyly, she notes, was a "close Bush associate" who used "an ad placement agency that had also worked for Republican Gov. George Pataki of New York," and aimed the ad at "moderate women who were the swing voters." He also used "the post office box of a PAC headed by a Texas congressman who supports Bush."

        "C'mon," Drew reasons. She concludes the Wyly ads weren't independent and should be banned (or, rather, counted as a campaign contribution that exceeds the $1,000 individual limit). Indeed, during the primary, Wyly's effort was routinely denounced as an impermissible sham by reformist politicians and editorialists--another example of the insidious effect of unregulated money on politics.

        But it's not that easy. Specifically, it's not that easy to distinguish Wyly from the "truly independent" campaigners Drew assures us she wants to leave alone. Was Wyly's anti-McCain campaign suspiciously well-targeted to the states and constituencies that Bush needed? Well, Drew herself notes that "in the real world," you hardly needed a briefing from Bush campaign manager Karl Rove to find out what these constituencies were. She says "it's no great trick to find out what kind of ad would be helpful." Exactly! If you were "truly independent," then, and you admired Candidate X's views and wanted to run some ads that would help him win office, you'd also have to be something of a moron not to realize that you should a) run the ads in states where they are actually holding an election, b) aim those ads at undecided voter groups, and c) stress issues that will appeal to those voter groups.

        What Drew is saying, then, is that however "independent" you may consider yourself, even if you never talk to anyone on Candidate X's staff, unless you in fact behave a bit like a moron and run stupid ads in the wrong places, you will be suspected of running a tacitly "coordinated" campaign under Drew's rigorous "C'mon" test. You will, at the least, be threatened with investigation by the Federal Election Commission (which Drew declares must show "vigilance" in "reviewing and adjusting" the "regulatory laws"). And you may well lose if, in the small world of partisan political consultants, you happen to hire an ad man who has worked for someone who has endorsed Candidate X--or shares the mailbox of a PAC headed by someone who has endorsed Candidate X, or has a close second cousin who has endorsed Candidate X. ("C'mon.")

        This is what is known in First Amendment jurisprudence as a "chilling effect." You say you're an American citizen and you like X? Go ahead, express yourself! Support him! Run your ads! Just be prepared to be investigated and penalized! No wonder the "myth" that reform threatens individual free speech has gotten some traction; Drew's own article shows that it's true.

        The point isn't that any reform is impossible. Corporate and union "soft money" donations to parties, for example, might be banned or strictly limited. But a really "honest discussion" would concede that the problem of Wyly-esque "independent" spending by individuals is tougher than reformers like Drew let on. Reformers should either admit that what Wyly did should probably be permitted, or they should make an explicit (and probably doomed) argument that the First Amendment rights of people who have more than $1,000 to spend on political ads are outweighed by various anti-corruption concerns. When it comes to protecting against suppression of political speech, we aren't crazy to insist on a sturdier legal barrier than "C'mon."

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