When Congress passed the McCain-Feingold campaign finance law in 2002, the big buzzword in the Nation’s Capital was “severability.” This obscure term describes a provision in a federal law that allows the Supreme Court to strike down a part of the law as unconstitutional while leaving the rest of the law in force.
“Severability” is incorporated into a bill when members of Congress suspect-or know-that something they are doing is unconstitutional.
“Severability” was on the lips of politicians all over D.C. when McCain-Feingold was enacted because it was a blatant attack on freedom of speech. Yet, majorities in both houses of Congress were desperate to pass it, and President Bush was eager to sign it.
Preserving the 1st Amendment was not as important, then, as making the grand political gesture du jour-condemning “money in politics.”
‘Swiss Cheese Legislation’
Nothing more poignantly captured the Constitution-flouting mood of our political leaders at that moment than an interview Tony Snow did on “Fox News Sunday” with House Speaker Dennis Hastert (R.-Ill.). To his credit, Hastert had voted against McCain-Feingold because it was unconstitutional. But he was counting on the Supreme Court using “severability”-not the President using his veto-to strike down a transparent attack on the Bill of Rights.
“The President, when he takes the oath of office,” said Snow, “is the only person in America who takes an oath to preserve, protect and defend the Constitution. If the bill’s unconstitutional, does he not have a specific obligation to veto it?”
“Well,” answered Hastert, “the bill does have-I’m not defending the bill, but it does have a severability clause.”
“To explain to people,” Snow said, “that means you take the unconstitutional parts out . . . you go to court, you throw them out.”
“Well,” said Hastert, “they go to court, the court’s going to throw out, you know, a lot of pieces of this legislation, which means you have Swiss-cheese legislation when you get done. But it’s going to happen, and I’m resigned to the fact.”
As he prepared to sign the bill into law, President Bush also confessed he thought it might violate the rights of American citizens.
The day the Senate passed the bill, he issued a written statement. The proposal, Bush said, was “flawed in some areas.” How so? “[I]t does present some legitimate constitutional questions,” he said.
Bush and Hastert counted on the Supreme Court to protect free speech from a law the Congress passed and the President signed. The court refused to do so.
In a 5-to-4 opinion, written primarily by the octogenarian J.P. Stevens (nominated by President Ford) and Sandra Day O’Connor (nominated by President Reagan), the court upheld the law virtually in its entirety.
As long as it stands, freedom of speech will be abridged in America.
Americans will be sharply limited in what they can contribute to the political parties they support. Political parties will be sharply limited in what they can raise and spend to promote their views, their candidates and popular participation in political campaigns. Both for-profit and non-profit corporations-except for news organizations such as CBS, ABC, NBC, the Washington Post and the New York Times-are all but excommunicated from national political discourse.
For at least three months during every federal election cycle (the 30 days before a primary and the 60 days before a general election), no association of free citizens (a for-profit or non-profit corporation) will be allowed to broadcast its views on a political or legislative issue if it dares to utter the name of an elected federal official.
Say, for example, Congress schedules a vote in the 60 days before an election to expand this law by permanently forbidding any corporation-other than a news agency-from broadcasting any message that mentions any member of Congress in any month of the year. In that event, the ACLU, the National Rifle Association, the National Right to Life Committee would not be allowed to broadcast ads informing you that your congressman intended to vote for this additional abridgment of free speech.
During the 60 days before an election, pornographers will be allowed to broadcast their materials on cable, but the ACLU will not be allowed to defend freedom of speech in a radio message.
Yet, perhaps the most ominous and Gestapo-like provision in the law is the provision-quoted on our cover page as summarized by Justice Stephen Breyer-requires that every broadcast outlet in America keep a record of every instance in which any American requests any broadcast time to deliver any message about any national political or legislative issue-even if it is not near an election, and even if it does not name an elected federal official.
Why does the government need a record of when a citizen of, say, Bismarck, North Dakota, inquires about buying time from a local radio station to state his views about, say, government attacks on freedom of speech?
For years, Americans who respect the 2nd Amendment have resisted a federal gun registry. Big Brother government does not need to know which law-abiding citizens might have a firearm in a bedside drawer because the Constitution says Big Brother government cannot infringe on the citizen’s right to keep and bear arms.
Nor does Big Brother government have the rightful authority to establish a federal speech registry-because the 1st Amendment says “Congress shall make no law . . . abridging the freedom of speech.”
This law does exactly that. It is an abomination to a free people. Those who voted for it hoping the court would strike down its unconstitutional provisions-and the President who signed it conceding it was constitutionally questionable-made an egregious error. Now they have a duty to redress that error by repealing this law.