by Mike Thompson, Jr.

The First Amendment to the Constitution could be termed the “participation” amendment because it centers on the freedoms entrusted to citizens, churches and the press to participate in the civic and cultural life of America. The First Amendment is expansive: it touches on freedom of religion, speech, press, assembly and redress of grievances. It gives life to the hope that government will be limited and tempered by the people and that everyone should participate in the task of self-governance. These rights are even more broadly defended in the Texas Bill of Rights.

Unfortunately, the First Amendment continues to be constricted in a myriad of ways but none so dramatically as in McConnell v. Federal Elections Commission that, essentially, upheld the notion that Congress could enact prior restraints on political speech. Now the Texas Legislature is debating two bills that would bring the McCain-Feingold standard to Texas. Bringing this law to Texas is not progress, it is the impoverishment of Texas politics. Thankfully, this legislation didn’t pass this year. It will be back.

The effort to pass SB 649 and HB 1348 relied heavily on press mischaracterizations of the campaign finance reform movement in general, the federal McCain-Feingold law and reports about the 2002 Texas elections. That is a flawed basis for action. There are problems with the Texas Election Code -- mainly that the definitions are vague and ambiguous and used interchangeably throughout; full disclosure is not required of all contributions and expenditures by every organization participating in the political arena; and the Texas Ethics Commission consistently fails to issue clear and unambiguous guidelines to assist candidates and committees in adhering to the Election Code.

The overarching goals of any changes to the Texas Election Code should be to fully guarantee speech rights. Rather than reforming the Election Code, the net effect of SB 649 and HB 1348 is to criminalize what should be legal and constitutionally-protected acts, and to make the Election Code more ambiguous, not less so. SB 649 and HB 1348 undermine the First Amendment Rights to political speech, participation and assembly while not categorically requiring disclosure of all contributions and expenditures by all organizations that participate in the political arena.

“Today’s cavalier attitude toward regulating the financing of speech,” wrote Justice Antonin Scalia, “frustrates the fundamental purpose of the First Amendment.” The Justice is correct, in our view. This was the majority view in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) when the Court held:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”

Paradoxically, many of the advocates for limitations on speech are corporations –- for profit incorporated media to be precise –- who would hold a commanding position if the rights to speech, participation and assembly were restricted for others. Former Senator Gramm identified this problem when arguing against the federal act. He said:

“What makes this debate an Alice in Wonderland debate is that the people who support this bill are the very people who will benefit from taking the American people out of the debate by limiting the ability of people to put up their time and their talent and their money. The very groups, the so-called public interest groups, the media, the very people who preach endlessly about this issue and about this bill being in the public interest, they are the very people who win an enhancement of their political power from this bill. What we are hearing identified as public interest is greedy, selfish, special interest.”

By limiting how and when organizations may communicate, the Legislature would, in effect, limit the political process to certain classes of participants. These are merely a variant strain of the voting rights restrictions – which were ultimately ruled to be unconstitutional – that allowed states to impose poll taxes and literacy tests among other requirements that were clearly meant to deter certain types of people from participating in the political process. Any restrictions, other than age and citizenship, are anathema to democracy particularly since any restrictions in speech have the effect of guaranteeing the position of incumbents over challengers.

The assumed evil behind the legislation is that campaign contributions corrupt the legislative process. However, as FEC member Bradley A. Smith describes in his book “Unfree Speech,” all a contribution really does is help a candidate to try to persuade others to vote for him or her. “Contrary to the heated rhetoric of some reformers the “wealthy” do not vote with their dollars. All they can do with their dollars is attempt to persuade others how to vote. That is free speech, and the essence of the First Amendment.”

Yet, SB 649, HB 1348 and laws of that variety, restrict the speech for virtually every type of organization, corporation, labor union, connected organization, and miscellaneous grouping by restricting what they can do politically. The ability to fund a candidate, or be critical or supportive of public officials or people who put themselves up for public office, is a reflection and expression of the fundamental belief of the people involved and should be protected. Furthermore, it is the final bulwark against democracy becoming sclerotic. More criticism and more participation are what keep democracy vibrant and healthy. The press and certain organizations may not like the appearance and tenor of what passes for political speech, but it is speech nonetheless and must be protected.