The Problem With Regulating Political Speech

In an attempt to overturn the effect of the recent Supreme Court decision in Citizens United v. FCC, House Democrats have passed the DISCLOSE Act.  The bill, which faces an “uncertain” future in the Senate, would subject corporations to new limits on issue advocacy, but specifically exempt a few entities hand-picked by House Democrats.  In particular, unions would be exempt from the restrictions in the bill as well as various other special interest groups affiliated with Democratic party causes or simply too powerful to risk offending (e.g. the NRA).

This process itself shows the problem with trying to limit the ability of corporations or anyone else to speak out on political issues that affect them.  (Contrary to the hyperbolic reports of many critics of Citizens United, the decision leaves in place limits on direct contributions to candidates.) Inevitably, such regulations will filled with custom-fit loopholes allowing allies of whichever party is currently in power to speak freely but attempting to muzzle adversaries.  In short, such restrictions are the functional end of the First Amendment because they make speech rights contingent on supporting the party currently in power.  At the point that whatever party happens to be in power at the time gets to determine who is allowed to use powerful media outlets and who is prohibited, what we would have would be indistinguishable from how authoritarian governments control access to the media by ensuring that only their supporters are allowed to speak while dissenters are barred.  In would have the veneer of the rule of law, but what lay just beneath the surface would be  nothing other than raw political coercion.

Because of the clumsiness of its attempt to claim partisan control of the media, the bill will probably die in a filibuster in the Senate.  And even if it were passed, the courts are unlikely to allow such a direct attack on dissenting political speech to set a precedent leading to even more partisan restrictions.  But the effort alone says very bad things about the attitude of the current Democratic party leadership towards free speech and dissent.  In exposing their desire for “free speech for me, but not for thee”, they have permanently forfeited the moral high ground they claimed only a short time ago with the slogan “dissent is patriotic”.