The Nation's Pulse / Confirmations of Independence
Fergenson, Arthur F.
"The Nation's Pulse / Confirmations of Independence" at 1524 Hollins Street in West Baltimore, the place which, as he told one of his biographers, was "as much a part of me as my own two hands." In his lifetime he left it only with the greatest...
...The opponents of independent expenditures do not stop there, of course...
...Money is being translated by a political campaign into communicative activity...
...Even so, this summer Common Cause filed suit in federal court to prevent several groups from making independent expenditures on behalf of Ronald Reagan, and, in spirit at least, it was joined by a host of others who would like to see the benefits Reagan supposedly derives from these independent expenditures end...
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...Whether their efforts in fact benefit Reagan or work against him, their right to make those efforts stands firm...
...The pro-Reagan people could, with total disregard of the Federal Election Campaign Act, praise Reagan and savage Carter, or, to put it another way, compare the two men, consider the important issues they address, and criticize Carter's record as President and praise Reagan's record as Governor...
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...And if quality were to be our main concern, as a policy question alone, the argument would have to run toward spending more money, not less...
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...In the New Yor~ Times of July 24, 1980, for example, the Chase Manhattan Bank--a corporation forbidden under federal law from supporting or opposing candidates for federal office--took out a fullpage advertisement announcing that after a "long and thoughtful look" at the First Amendment the Bank had answered in the affirmative the question of "whether an institution such as ours should continue to speak out on important and sometimes sensitive issues in the middle of a national election...
...After all, there could hardly have been a more political statement in the 1976 campaign than the "Pardon Me" poster...
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...penditures "loophole" in the ways that Reagan's supporters intend...
...Whereas independent expenditures are subject to disclosure under the Campaign Act, independent non-expenditures are not...
...Here Common Cause would finally, and justly, be rendered impotent...
...For the celebranon, it has been made into a tourist attraction of sorts, catering to what he once called "the inferior man's unquenchable desire to grovel and admire...
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...is innocent, and he is riglit...
...Who is to say how much money is too much...
...Despite the pernicious absurdity of its case against independent expenditures, Common Cause does threaten the fight to make them...
...Besides, money itself is not being tossed at the American people...
...To argue that Reagan is unfairly helped by independent expenditures is to ignore the legitimate interests of Reagan's supporters...
...The sole constitutional justification for restricting campaign financing, the Court rightly argued, is the prevention of corruption or of the appearance of corruption on the part of a candidate: An expenditure made independent of a candidate affords no such possibility...
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...In his lifetime he left it only with the greatest reluctance wben his editorial duties--at the Smart Set and American Mercury--called him to Manhattan...
...It is, thus, of no constitutional weight that Carter may come to be at even a substantial disadvantage in the election because of pro-Reagan independent expenditure committees...
...They could be financed by contributions in excess of $5,000 and the contributors' names would be confidential...
...In fact, independent non-expenditures cannot constitutionally be regulated in any way by the federal government, or by the states...
...What are some of the "important economic issues" on which the Bank would speak...
...Whose issues are these ? Not Carter's...
...It maintains, for instance, that independent expenditures are unfair, giving one candidate an advantage over the other...
...Common Cause and its allies maintain that the sheer number of independent expenditures for Reagan renders them illegal, and that the Supreme Court could not have anticipated the use of the independent exArthur F. Fergenson is Associate Professor at the University of Maryland Sdooo/ of Law at Ba/tiraore...
...The need for greater productivity," "the need to stimulate research and development," "tax incentives to spur investment, generate capital and modernize our industrial plants," "government over-regulation," "inflation," and "the spurious rhetoric about 'excessive' corporate profits...
...Independent non-expenditures are used to pay for political communications that do not expressly advocate the election or defeat of a clearly identified candidate...
...For avoiding federal election regulations-regulations often unconstitutional in essence--independent non-expenditures have much to recommend them...
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...Unfortunately, Common Cause enjoys a cultural legitimacy that the "merits" of its theories hardly justify...
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...Among the many silly arguments advanced against independent expenditures, this is perhaps the silliest --but it is also dangerous...
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...But Common Cause can be expected to press its case ill other forums through judicial appeal or by other legal or legislative harassments...
...Moreover, the First Amendment is indifferent to the quality of speech...
...They worry also about other things, like money...
...Upon closer examination, however, it betrays the tendentious reasoning and specious logic that so often lie behind causes advanced in the "public interest...
...specifically, they worry that without effective limits on campaign spending too much money will be wasted or badly spent, drowning the American people in a distorting and mindless mass media campaign...
...The poster also featured a quotation from a 1974 Ford speech: "I can say from the bottom of my heart--the President of the U.S...
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...It is only necessary that Carter's followers be as free as Reagan's to speak their minds and spend their money on behalf of their candidate...
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...Which should lead Reagan supporters to consider taking up another THE AMERICAN SPECTATOR OCTOBER 1980 25 strategy, or, in Common Cause's parlance, another "loophole": independent non-expenditures...
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...Thus, Common Cause could not object on purely constitutional grounds, but instead must rely on other kinds of criticisms, the sort which aim at discrediting the "loophole" to such an extent as to make it appear illegal...
...Independent expenditures, they point out, make effective limits impossible...
...The Court did, however, rule certain parts of the Act unconstitutional, among which, the limitation on independent expenditures, that is, on expenditures by people who have not coordinated their political activities with the candidate they are supporting...
...Common Cause lost the first round in late August when the federal district court in Washington, D.C., rejected its challenge...
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...Similarly, the Second Circuit Court of Appeals recently ruled that the distribution of the voting record of a congressman alongside a critical commentary was not an independent expenditure, since there was no "unambiguous statement in favor of or against the election" of a candidate...
...26 THE AMERICAN SPECTATOR OCTOBER 1980...
...Inevitably the case against these independent expenditures is put forward as if grounded in democratic principles...
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...T h e First Amendment's protection against governmental abridgement of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion...
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...To begin with, the right to make independent expenditures is not a "loophole...
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...Consider: Mencken's home at 1524 Hollins Street has been taken over by, and now is in the custody of, the University of Maryland's School of Social Work and Community Planning...
...But of course the First Amendment is interested in liberty, not equality...
...The Federal Election Commission brought suit against the union in federal district court, claiming that the poster was an independent expenditure and that the union violated the law by failing to report it...
...In 1976 the union of state and local government workers circulated a poster which depicted Gerald Ford wearing a button reading "Pardon Me" and embracing former President Nixon...
...After forgiving the sinner of our choice, we have only to keep an eye out for a homely girl...
...Imagine the possibilities...
...But that is not the worst...
...There is recent evidence that at least some organizations are aware of their First Amendment right to engage.in independent non-expenditure...
...Specifically, they are not used to couple words like "vote for," "elect," "support," or "cast your ballot for/against" with a candidate's name or likeness...
...It is hard--it is impossible--to think of a contemporary writer who will be equally celebrated when the calendar registers the 100th anniversary of his birth...
...Those of us who may feel inclined to observe the Mencken centenary without oratory or guided tours carj easily find ways of doing so...
...With more money, candidates might well become less concerned with the most cost-effective ways of communicating with the public, like television spots, and might be able to afford more meaningful (literally) kinds of communication, like the distribution of position papers...
...The centenary observances, cluttered as they are with rites, formulas, and associations which he himself found absurd, and which in consequence take on a tinge of burlesque, nevertheless attest to the enduring place of Mencken in American life...
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...As the Court reasoned in 1976, the right to political speech, comprising in part the right to spend money on behalf of a candidate, stands at the highest level of our constitutional system...
...As the Court stated in its 1976 decision: The concept that government may restrict the speech of some elements in order to enhance the relative voice of others is wholly foreign to the First Amendment...
...In short, it is the free speech of Reagan's supporters which is at stake: It is their speech--not Reag a n ' s - t h a t Common Cause would abridge...
...CONFIRMATIONS OF INDEPENDENCE by A r t h u r F. Fergenson I n 1974 Congress amended the Federal Election Campaign Act to include, among other things, limits on contributions to candidates for federal office...
...After all, it argues, Carter and Reagan are given the same amount of federal money to run their campaigns (almost $30 million each) and that equality should be preserved...
...Though thwarted this time, Common Cause will appeal, and its persistence may persuade the independent Reagan committees to seek the constitutional protection afforded independent non-expenditures, rather than face endless litigation...
...The Act as amended was challenged in 1976 by a diverse group of plaintiffs (and for a variety of reasons), but was largely upheld by the Supreme Court in an excruciatingly long, and, even for the Court, boring opinion...
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...One of a red-brick row of identical dwellings typical of Baltimore, the Hollins Street house is the sanctum of Menckeniana, the shrine, the fount from which flowed that dazzling outpouring of vituperation upon what he called " t h i s glorious commonwealth of morons...
...They may, after all, run independent campaigns that are not entirely pleasing to Reagan...
...Certainly the $60 million the federal government gives to the two major parties is a tiny amount to spend on the most important educative process this country engages in...
...There is no difference between saying that too much money is spent on politics and saying that there is too much political speech...
...The opportunity thus exists for any group of like-minded individuals to band together and promote the candidacy of any individual running for public office without having to suffer interference from the Federal Election Commission or from the public-interest lobbies in Washington attempting to serve our national conscience...
...And the message would be put across no less forcefully...
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...simplicity itself to tailor newspaper and television advertising--even house-to-house canvassing--to avoid the use of partisan language...
...Indeed, they do...
...But do they educate the body politic...
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...But above all, because those who believe in Reagan believe in freedom, they will not be easily silenced...
...And whereas the Campaign Act limits contributions to independent expenditure committees (clearly unconstitutional, by the way), it affects independent non-expenditures not at all...
...The only thing the advertisements could not do is say "Elect Reagan" or "Dump Carter...
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...The court held that since there was no express advocacy of election or defeat, the expenditure was not covered by the campaign law...
...The "purpose" of the distributors was held to be irrelevant...
...Or they may devote part of their efforts to keeping him "honest," preventing him, to the extent they can, from moving to the left...
Vol. 13 • October 1980 • No. 10
