McCain and the First Amendment

By George F. Will Published:

By George F. Will

WASHINGTON -- Presidents swear to protect and defend the Constitution. The Constitution says: Congress shall make no law ... abridging the freedom of speech. On April 28, on Don Imus radio program, discussing the charge that the McCain-Feingold law abridges freedom of speech by regulating the quantity, content and timing of political speech, John McCain did not really reject the charge:

I work in Washington and I know that money corrupts. And I and a lot of other people were trying to stop that corruption. Obviously, from what weve been seeing lately, we didnt complete the job. But I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, Id rather have the clean government.

Question: Were McCain to take the presidential oath, what would he mean?

In his words to Imus, note the obvious disparagement he communicates by putting verbal quotation marks around First Amendment rights. Those nuisances.

Then ponder his implicit promise to complete the job of cleansing Washington of corruption, as McCain understands that. Unfortunately, although McCain is loquacious about corruption, he is too busy deploring it to define it. Mister Straight Talk is rarely reticent about anything, but is remarkably so about specifics: He says corruption is pandemic among incumbent politicians, yet he has never identified any corrupt fellow senator.

Anyway, he vows to complete the job of extirpating corruption, regardless of the cost to freedom of speech. Regardless, that is, of how much more the government must supervise political advocacy. President McCain would, it is reasonable to assume, favor increasingly stringent limits on what can be contributed to, or spent by, campaigns. Furthermore, McCain seems to regard unregulated political speech as an inherent invitation to corruption. And he seems to believe that anything done in the name of leveling the playing field for political competition is immune from First Amendment challenges.

The logic of his doctrine would cause him to put the power of the presidency behind efforts to clamp government controls on Internet advocacy. This is because the speech regulators impulse is increasingly untethered from concern with corruption. It is extending to regulation in the name of fairness. Bob Bauer, a Democratic lawyer, says this about the metastasizing government regulation of campaigns:

More and more, it is meant to regulate any money with the potential of influencing elections; and so any unregulated but influential money, in whichever way its influence is felt or achieved, is unfair. This explains the hand-wringing horror with which the reform community approached the Internets fast-growing use and limitless potential.

This is why the banner of campaign reform is no longer waved only by insurgents from outside the political establishment. Washingtons most powerful people carry the banner: Led by Speaker Dennis Hastert, and with the presidents approval, the Republican-controlled House recently voted to cripple the ability of citizens groups called 527s (named after the provision of the tax code under which they are organized) to conduct independent advocacy that Washingtons ruling class considers unfair.

Which highlights the stark contradiction in McCains doctrine and the medias applause of it. He and they assume, simultaneously, the following two propositions:

Proof that incumbent politicians are highly susceptible to corruption is the fact that the government they control is shot through with it. Yet that government should be regarded as a disinterested arbiter, untainted by politics and therefore qualified to regulate the content, quantity and timing of speech in campaigns that determine who controls the government. In the language of McCains Imus appearance, the government is very much not clean, but is so clean it can be trusted to regulate speech about itself.

McCain hopes that in 2008 pro-life Republicans will remember his pro-life record. But they will know that, regarding presidents and abortion, what matters are Supreme Court nominees. McCain favors judges who think the Constitution is so radically elastic that government regulation of speech about itself is compatible with the First Amendment. So Republican primary voters will wonder: Can President McCain be counted on to nominate justices who would correct such constitutional elasticities as the courts discovery of a virtually unlimited right -- one unnoticed between 1787 and 1973 -- to abortion?

McCain told Imus that he would, if necessary, sacrifice quote First Amendment rights to achieve clean government. If on Jan. 20, 2009, he were to swear to defend the Constitution, would he be thinking that the oath refers only to the quote Constitution? And what would that mean?

2006, Washington Post Writers Group

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