Free Speech Reformed

February 10, 2008

Carrying Water for Mr. Soros

“The Bipartisan Campaign Reform Act of 2002” is the short title for the legislation that was passed under the sponsorship of Senators John McCain and Russ Feingold for the ostensible purpose of eliminating corruption in the funding, of all things, political campaigns. The truncated short title is BCRA but most frequently you’ll find this law referred to as McCain-Feingold. This legislation was the result of many years work and campaigning by Senator McCain to “reform” the American body politic and reduce the influence of “big money” in political campaigns. In fact, Sen. McCain was honored in 1999 for this work when he shared the Profile in Courage Award with fellow Senator Russ Feingold for their work in trying to enact campaign finance reform.

A really big boost to McCain’s crusade came when. . .

The Reform Institute was founded in 2001 in direct response to the millions of Americans who, during the 2000 presidential campaign, expressed profound disillusionment with corrupt fundraising activities and the political “closed shop.” The initial bipartisan Honorary Chairs of the Advisory Committee were Senator John McCain (R-AZ) and former Senator Bob Kerrey (D-NE).

McCain resigned his position in 2005. Campaign finance reform was now the law of the land and had for the most part passed the Supreme Court’s constitutional muster. The Reform Institute, however, has continued to operate by broadening their reform efforts to include “Democracy & Elections, Homeland Security, State Reform, Immigration, Climate & Energy, and Economic Policy.” It’s absolutely astounding how much in America is crying out for “reform.”

Over and above having been generously assisted by the Institute in getting McCain-Feingold passed, McCain had the opportunity to become friends with many wealthy and influential persons through his position on the advisory committee. Though a detailed list of donors is no longer publicly available at the institute’s site, George Soros and Arianna Huffington are among the noted supporters. Another is the Tides Foundation whose largest funding source is the Pew Charitable Trusts. Tides was designed and established as a means for wealthy individuals, as well as other foundations, to donate to causes that they may prefer to not be publicly associated with. Thus funded and affiliated, the Reform Institute, originally named the “Reform Institute for Campaign and Election Issues,” can hardly be considered an oasis of conservative political activism in the desert of American liberal foundations.

In fact, the entire campaign finance reform movement was a brainchild of the left and a fraud perpetrated on Congress and the American electorate:

CAMPAIGN-FINANCE reform has been an immense scam perpetrated on the American people by a cadre of left-wing foundations and disguised as a “mass movement.”

But don’t take my word for it. One of the chief scammers, Sean Treglia, a former program officer of the Pew Charitable Trusts, confesses it all in an astonishing videotape I obtained earlier this week.

The tape – of a conference held at USC’s Annenberg School for Communication in March of 2004 — shows Treglia expounding to a gathering of academics, experts and journalists (none of whom, apparently, ever wrote about Treglia’s remarks) on just how Pew and other left-wing foundations plotted to create a fake grassroots movement to hoodwink Congress.
Charged with promoting campaign-finance reform when he joined Pew in the mid-1990s, Treglia came up with a three-pronged strategy: 1) pursue an expansive agenda through incremental reforms, 2) pay for a handful of “experts” all over the country with foundation money and 3) create fake business, minority and religious groups to pound the table for reform.

— Ryan Sager, “Buying ‘Reform’,” New York Post, 03/17/2005

Pew and Tides were not alone in their efforts to bring the First Amendment into the 21st Century. Other NGOs, along with some volunteer work by NPR, helped promote a campaign that was deliberately disguised as a populist ground swell:

The efforts of Pew and the other liberal foundations, which include George Soros’s Open Society Institute and the Carnegie Corp., were aided by the news media’s complicity. The American Prospect, a liberal magazine, put out a special issue on campaign finance reform in 2000 that was paid for by a $132,000 Carnegie grant–a fact the magazine failed to disclose.

National Public Radio openly accepted $1.2 million from liberal foundations to provide such items as “coverage of financial influence in political decision-making.” Its campaign finance reporter, Peter Overby, is a former editor of the magazine put out by Common Cause, a major supporter of McCain-Feingold. No one suggests there was direct collusion between NPR and campaign finance lobbies. With the money and personnel available to NPR, there didn’t need to be. Sympathetic stories on the need for campaign finance reform flowed naturally. ..

— John Fund, “Astroturf Politics,” Wall Street Journal, 03/21/05

Your tax dollars at work.

And so Senator McCain’s legislative offspring had numerous midwives. The gestation period spanned many years and prenatal care was both intense and very expensive.. Born in 2002 and baptized by the Supreme Court in 2003, McCain-Feingold makes free speech a bit less inconvenient for well-heeled incumbents by penning-in that frisky First Amendment. However, like most children, this one is also experiencing some growing pains:

The case dates back to July 2004, when Wisconsin Right to Life ran ads asking Wisconsin citizens to call their senators, Herbert Kohl and Russ Feingold, and ask them to oppose the filibusters of President Bush’s judicial nominees. At the time, Feingold was running for re-election.

Wisconsin Right to Life argued that the blackout period mandated by McCain-Feingold could not be applied to grassroots lobbying about upcoming votes in Congress. The right to petition the government is a protected right in the First Amendment and grassroots lobbying has nothing to do with elections, the group said.

But in their Supreme Court appeal, Senator McCain and the other co-sponsors of the McCain-Feingold law argued that broadcast ads could be prohibited if they “took a critical stance regarding a candidate’s position on an issue.”

In today’s 5-4 decision, the Supreme Court created a “constitutional safe harbor for grassroots lobbying,” Wisconsin Right to Life said.

Sen. John McCain called it “regrettable” that a split court has “carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election.”

— Susan Jones, Supreme Court Slaps McCain-Feingold,” Cybercast News Service, 06/25/07

John McCain makes himself quite clear as to where he stands regarding the First Amendment when he expresses disappointment that the courts have failed to diligently guard the nation against those who would wish “to target a federal candidate in the days and weeks before an election.” We certainly can’t have any of that, can we?

And this does make one wonder if support for McCain-Feingold will become the new litmus test for federal judicial nominees.

The Swift Boater 527 Loophole

In 2004, during the course of that year’s presidential campaign, an organization that called itself the “Swift Boat Veterans for Truth” came into being as a “527 Group.” As described in Wikipedia, 527s are. . .

a type of American tax-exempt organization named after a section of the United States tax code, 26 U.S.C. § 527. A 527 group is created primarily to influence the nomination, election, appointment or defeat of candidates for public office. Although candidate committees and political action committees are also created under Section 527, the term is generally used to refer to political organizations that are not regulated by the Federal Election Commission or by a state elections commission, and are not subject to the same contribution limits as PACs.

The Swift Boat Vets gained a fair degree of notoriety because of their opposition to John Kerry being elected President. They were of the opinion that he was unfit to be Commander in Chief of the American armed forces. What motivated and sustained this group, comprised of about 250 officers and enlisted men, was Kerry’s questionable, in their minds, performance in combat and what they claimed was his exaggeration of his service record. They also questioned the legitimacy and honesty of his anti-war activities while still a reserve officer. This included Kerry’s Congressional testimony damning of the U.S. military and American servicemen for their having committed atrocities “in the manner of Genghis Khan.”

Today, most Americans are not very well acquainted with the military and the expectations that military persons have of one another. Honor is not just a quaint and passé concept. And as an ex-Air Force Captain and pilot perhaps I better understand what motivated the Swift Boat Vets. For a man to claim valor in combat by embellishing his deeds is a dishonor to his service and his fellow combatants. Even more so should an officer commit such a sin. The same may be said of someone who is guilty of totally fabricating his combat experience. Personally, I would first place my trust in the honor and honesty of those 250 veterans before I would that of a presidential candidate intent on establishing his military mettle.

Now, I can understand why Senator Kerry, the Democratic apparatchiks, his supporters and campaigners would attempt to dismiss the Swift Boat Vets as crackpots, or worse, liars. After all, this is politics and everything goes, right? You go out, with the help of CBS touting some fake documents, and attempt to prove that the President at least partially reneged on his Texas ANG obligation and his military performance rated criticism. Bush is no hero. But look at our guy! Combat experience, medals, wounded, et cetera, what more could you ask for?

But why Bill O’Reilly? I thought he supported “the troops”? What was his reason for chiming in with the growing ‘Let’s give the Swift Vets a swift kick in the pants’ chorus? And here’s what President Bush had to say about the Swift Boat Vets and their use of a 527 to conduct their campaign:

Bush pronounced himself amazed that such groups, known as 527s, are still allowed to have their say. “I, frankly, thought we’d gotten rid of that when I signed the McCain-Feingold bill,” he told reporters the other day, referring to the Bipartisan Campaign Reform Act of 2002, which was aimed at preventing freedom of speech from interfering with democracy. “I don’t think we ought to have 527s… I think they’re bad for the system.”

— Jacob Sullum, “Political Veterans for Censorship,” Reason, 08/27/04

Guess he didn’t read the law before he signed it. Perhaps you recall Bush promising during his first presidential election campaign that he would veto any “campaign finance reform” legislation that came before him as President?

John McCain had by then already voiced his criticism of these fellow Vietnam veterans and their efforts to prevent a man from becoming Commander in Chief whom they felt was uniquely unqualified for the job:

Republican Sen. John McCain, a former prisoner of war in Vietnam, called an ad criticizing John Kerry’s military service “dishonest and dishonorable” and urged the White House on Thursday to condemn it as well.

The White House declined.

“It was the same kind of deal that was pulled on me,” McCain said in an interview with The Associated Press, comparing the anti-Kerry ad to tactics in his bitter Republican primary fight with President Bush.

— Associated Press, “McCain deplores anti-Kerry ad,” MSNBC, 08/04/04

Missing from most of the public discussion of the Swift Boat Vets’ ad was any mention of how Kerry’s testimony before Congress was constructed entirely from falsehood:

In fact, the entire Winter Soldiers Investigation was a lie. It was inspired by Mark Lane’s 1970 book entitled Conversations with Americans, which claimed to recount atrocity stories by Vietnam veterans. This book was panned by James Reston Jr. and Neil Sheehan, not exactly known as supporters of the Vietnam War. Sheehan in particular demonstrated that many of Lane’s “eye witnesses” either had never served in Vietnam or had not done so in the capacity they claimed.

— Mackubin Thomas Owens, ” Vetting the Vet Record,” National Review, 01/27/04

John Kerry had willingly damned his fellow soldiers before the Senate, though his testimony was stitched together from false witness, and had accused American officers and men of killings and atrocities that had never taken place. Was it really all that much of a stretch to think that he may have exaggerated his service record? Whatever his “official” dossier might say? Either Kerry had been duped by the Winter Soldier Investigation or he had been a willing participant in the fraud. In either case, the Swift Boat Vets had legitimate and substantive reasons to question the suitability of John Kerry to be Commander in Chief.

But rather than discuss that issue, the mainstream media and the political celebrities of the day chose to challenge the integrity and honor of the Swift Boat Veterans themselves. If you don’t like the message, discredit the messengers.

Or silence them.

Paying for Free Speech

Political campaigning in America is a multi-billion dollar business:

. . . In 2004, the three big Republican committees — the Republican National Committee, the National Republican Senatorial Committee, and the National Republican Congressional Committee — out-raised the comparable Democratic committees by a huge amount: Republicans brought in $898 million, Democrats $679 million.

That was the good news. The bad news came when Mitchell described the contributions to groups outside the parties, especially the 527s. Of the ten biggest 527s in 2004, Mitchell explained, seven were pro-Democrat. Of the top twenty, she said, 15 were pro-Democrat. Those 15 pro-Democrat groups raised $359,338,378. The five pro-GOP groups raised $85,363,370. That disparity alone more than erased the GOP’s lead in hard-money fundraising.

— Byron York, “The Republican Flip-Flop on Campaign Finance Reform,” National Review, 03/30/2006

Let’s see, that totals out, between both parties and including both “hard” and “soft” money, to about $2.02 billion – just for the 2004 election cycle, that is. And this was after McCain-Feingold was passed into law. Considering the total of contributions given in 2004, McCain-Feingold certainly could not have been intended to limit the overall size of the campaigning kitty. If we look at the distribution of soft money contributions, it’s obvious that the BCRA was written to favor the very political constituency that worked so hard and long to bring it into existence – the Big-Money Democrats. Through the use of 527s political contributors were able to avoid most of the more onerous Federal Elections Committee rules and regulations.

Unfortunately for the Democrats, the Swift Boat Veterans 527 may have been just enough to put President Bush back in office for a second term. The difference this time being the margin in electoral votes provided by the state of Ohio rather than Florida as in the 2000 debacle. Even so, in his article Mr. York provides a detailed picture of how the Republicans in Congress, not the Democrats, were working to muzzle the 527 groups. Even though a 527 may have helped give the GOP a victory in 2004, the soft money advantage the groups had given the Democrats was proving a more tempting target than the preservation of free speech. So much for principle.

However, reforming the reform legislation is not the only way to keep 527s from wandering too far off the campaign reform reservation. In December of 2006, the Federal Election Commission announced:

…that it has reached settlements with three 527 organizations accused of violating the federal campaign finance laws during the 2004 presidential election. The League of Conservation Voters 527 and 527II, Voter Fund, and Swiftboat Veterans and POWs for Truth have collectively paid almost $630,000 to settle charges that they failed to register and file disclosure reports as federal political committees, and accepted contributions in violation of federal limits and source prohibitions.

Note that they paid the fines “to settle charges.” The Swiftboat Veterans and POWs for Truth paid the biggest chunk with a fine of $299,500. No day in court. Settle up or be litigiously impoverished. For Soros’s Voter Fund, its $150,000 fine seems a joke. I suspect that such an amount will not put a damper on the Soros doppelgangers but may very well have a chilling effect on true grass roots movements such as the Swift Boat Vets.

The battles against free speech continue to rage across the country. In the city of Oakland, California we are reminded that…

When the McCain-Feingold law empowered government to regulate the quantity, content and timing of political campaign speech about government, it was predictable that the right of free speech would increasingly be sacrificed to various social objectives that free speech supposedly impedes…
Some African American Christian women working for Oakland’s government organized the Good News Employee Association (GNEA), which they announced with a flier describing their group as “a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family Values.”

The flier was distributed after other employees’ groups, including those advocating gay rights, had advertised their political views and activities on the city’s e-mail system and bulletin board. When the GNEA asked for equal opportunity to communicate by that system and that board, it was denied. Furthermore, the flier they posted was taken down and destroyed by city officials, who declared it “homophobic” and disruptive.

— George F. Will, “Speech Police, Riding High in Oakland,” Washington Post, 06/24/2007

I wonder if this should be considered one of the “penumbras” of McCain-Feingold.

Even when an issue is as locally centered as an annexation by a city, the spirit of McCain-Feingold imposes itself upon the politics:

In February 2006, Norm Feck learned that the city of Parker, Colorado was thinking about annexing his neighborhood, Parker North. Feck attended a meeting on the annexation, realized that it would mean more bureaucracy, and concluded that it wouldn’t be in Parker North residents’ interest. Together with five other Parker North locals, he wrote letters to the editor, handed out information sheets, formed an Internet discussion group, and printed up anti-annexation yard signs, which soon began sprouting throughout the neighborhood.

That’s when annexation supporters took action—not with their own public campaign, but with a legal complaint against Feck and his friends for violating Colorado’s campaign finance laws. The suit also threatened anyone who had contacted Feck’s group about the annexation, or put up one of their yard signs, with “investigation, scrutinization, and sanctions for Campaign Finance violations.” Apparently the anti-annexation activists hadn’t registered with the state, or filled out the required paperwork disclosing their expenditures on time. Steep fines, increasing on a daily basis, were possible. The case remains in litigation.

— Bradley A. Smith, “Campaign Finance Reform’s War on Political Freedom,” City Journal, 07/01/07

While in Washington state, they argued about the dollar value of speech:

Washington’s highest court struck down a decision by Superior Court Judge Chris Wickham, who in 2005 ordered [that] KVI radio hosts John Carlson and Kirby Wilbur had to place a monetary value on “campaign contributions” they made when they argued in favor of Initiative 912, a ballot measure to repeal a 9.5-cent-a-gallon increase in the state’s gasoline tax. The antitax measure ultimately lost by 6% of the vote, in part because its opponents outspent its supporters by 20 to 1.

But the “unofficial” support of the measure by talk-show hosts such as Messrs. Carlson and Wilbur, who went so far as to actively tell listeners how they could sign petitions to get I-912 on the ballot, infuriated the self-styled Keep Washington Rolling coalition, which backed the gas tax hike. The coalition convinced a local prosecutor in San Juan County, along with the cities of Kent, Auburn and Seattle, to sue KVI radio demanding that it be brought under the state’s campaign finance laws.

— John Fund, “When Talk Isn’t Cheap,” Wall Street Journal, 04/30/2007

The implications, ramifications and direct results of McCain-Feingold are legion and as yet not fully known or understood. The law not only provides a multi-faceted means of suppressing free speech, but adds another arrow to the litigation quiver of federal, state and local governments that have already grown too large, too expensive and too oppressive. We don’t have a Human Rights Commission on the order of the one in Canada that has triggered outrage amongst Canadians for its inquisition of writer Mark Steyn. But who can say in what form will next appear the reform avatar? We would be wise to remember that the Reform Institute is hard at work cooking up another political witches brew.

Presidential candidate John McCain has over the years said and done much. His military record and conduct as a prisoner of war are beyond reproach. He has earned his country’s respect and its undying gratitude. However, in and of itself, that is not fully qualifying for this nation’s highest office. We don’t owe John McCain the presidency. He is asking that Americans place their faith in him and that he will confirm their trust when he is in office. But we should require no assurance, nor need be given any promise, other than that offered when a President elect stands, takes the oath of office, and swears to “preserve, protect, and defend the Constitution of the United States.”

Unfortunately, when it comes to Mr. McCain and his record regarding McCain-Feingold, I have some nagging doubts.