What You Can’t Say Can Hurt You: How Talking Politics Became the First Amendment’s Red-Headed Stepchild.

A Millennial is someone who reached young adulthood around the year 2000.  Someone who has only a vague notion that Will Smith used to be something before he was an actor, and who types into a phone more than he talks into one.  Youth tends to have myopia when it comes to comparing history and recent history, because the lenses aren’t that far apart yet.

If you ask a Millennial about the history of political speech, he’s liable to have a distorted view. He might believe that before his time, politicians never engaged in personal attacks.  Or that the era of Lincoln-Douglas debates occurred long before “big money” supposedly corrupted the political system. He might even believe that the Founding Fathers viewed political expression as a crass but necessary evil of the First Amendment, valuing instead avant-garde fine arts and personal expression as the end-all-be-all of freedom of speech.

Of course, as evidenced by dub step music and organic foods, the average Millennial probably has Nutella® for brains.

RushmoreThe truth is that old school politicians slung political mud in ways that would make James Carville blush.  For instance, backers of John Quincy Adams’s re-election campaign of 1828, eschewed the gentlemanly image of 19th Century society in favor of the simpler, “His wife’s a bigamist and his mother’s a whore,” approach. Likewise, spending in politics has never been a non-issue.  Although Lincoln nearly bankrupted himself spending on his own campaign, he also pooled his money with that of many wealthy supporters.

But perhaps the most hazardous misconception about politics and free speech is that elections, once driven by ideas, are now easily and pervasively manipulated by money.  The electorate used to be skeptical of the influence the wealthy might have on politicians.  That sort of eyebrow-raising can be healthy, even useful. But aimless skepticism leads to cynicism.  Now The Voter believes The Voter himself is untrustworthy, so gullible as to pull the lever for the candidate with the slickest campaign ad, or the best celebrity endorsement.

In a misguided effort to “level the playing field” between candidates, campaign finance laws sought to root out the perceived evil of one person spending too much on a candidate’s campaign.  Since all campaigns are about ideas–personalities notwithstanding–any restriction on campaign spending is necessarily a restriction on speech.

The Squeeze is On

Restricting an individual’s ability to spend money in support of a political candidate is relatively recent. While early campaign finance reform began with prohibiting corporations (Tillman Act, 1907), and then unions (Taft-Harley Act, 1947) from donating directly to campaigns, and enacted disclosure requirements (Federal Corrupt Practices Act of 1925), these did not cap gifts from individuals. But the reformers simply could not contain themselves.  Primary elections, which by definition are an internal mechanization of a political party, soon fell under the implausibly long arm of Congressional control (Hatch Act, 1939, amended 1940).  Despite all of this litigation, the Federal Election Commission’s “Thirty Year Report,” issued in 2005, summarized these attempts as naive and ineffective for not creating “an institutional framework” that would administer and enforce campaign finance provisions effectively.

Q:    Wait, what?  You mean all the years since 1907 Congress just forgot to pass the part of the law that allowed enforcement?

A:    Um, yes.  That’s right.  Silly early 20th-Century folks. Too concerned with Prohibition, I expect.

Q:    What about the Justice Department, the U.S. Attorneys, federal district courts?  I’m pretty sure they would’ve been able to enforce those laws.

A:    Don’t be obtuse.  Every right-thinking person knows that there’s no point in passing federal legislation without a system of well-educated experts to monitor citizens.

Q:    Sounds more like the FEC trying to justify its budget if you ask me.

A:    Look, a squirrel!

Not until the post-Watergate era did Congress create the Federal Election Commission, originally charged with enforcing the 1971 Federal Election Campaign Act.   The FECA was important because for the first time it limited spending, rather than just requiring reporting of expenditures and limiting donations from certain sources.

PAC-Man Fever

The FECA created Political Action Committees, or PACs.  It allowed corporations and labor unions (but mostly labor unions) to create separate funds consisting of voluntary contributions (and some not-so-voluntary) from individuals, which could then be donated to a campaign.  Some opponents of free-flowing speech in politics criticized the PACs for being puppets of their corporate or big labor masters.  In a sense, this was true.  But it was also inevitable. If voluntary contributors to a PAC, such as shareholders, also ran a corporation, the two entities would have had many shared goals.

During the 80s and 90s, the media portrayed PAC spending as a corrupting evil to grass roots politics.  It seemed that the political voice of an individual was sacred, but when pooled collectively and expressed with the force of thousands or millions, the opinions became tainted and ugly. Whether on a particular issue–abortion, gun control, whether ketchup is a vegetable–or for a particular group–the Moral Majority, retirees, the Friends of William “The Refrigerator” Perry–a hideous monster arose from the operating table of populism.  It was even given a name: special interest. Even today, this label is the near-perfect smear for the other guy’s opinion.  It reeks of Abramoff-style lobbying, inappropriate influence, and the mythical smoke-filled back room where the old boys network still runs the show.  It’s the all-in-one villifying tool that no political hack, press secretary, or talking head can live without.  It’s also a lie.

Be careful…if you accidentally spell “Benghazi” 30 days before the general election, you’re probably going to jail.

Opinions are not invalid because they are expressed collectively–sung from a choir, as it were, instead of by soloists. We should have learned from the PAC experience that trying to categorize political speech by its method of delivery (individual or collective) is foolish.  We should have looked at our hole card, and folded.  We should have finally stepped away from gambling with free speech, chalked the FEC up to one of those (many) post-Watergate overreactions.  We should have walked away.

Unfortunately, we doubled down.  And now Millennials may never think it’s strange that they can spend $12,000 on the World’s Largest Scrabble Board, but if they give more than $2,600 to support a political candidate they are breaking the law.  They may live their entire lives thinking that the Founding Fathers really went to the mat for the First Amendment rights of Robert Mapplethorpe “art” depicting a crucifix dipped in urine, but that television advertisements which actually influence–gasp!–someone’s vote are somehow an unseemly perversion of free speech.

We have a lot of work to do.


Next time: Why campaign spending matters for Millennials, Citizens United, and a guy named Ed.