THE country's leading newspapers have been curiously silent on the unconstitutional "speech tax" that the Senate-passed campaign finance bill creates in the name of "reform."
The bill would tax at the top corporate rate (currently 34 percent) the campaign contributions of candidates who exercise their First Amendment right to spend over so-called "voluntary" limits prescribed by Congress. Such a direct penalty makes the spending limits about as "voluntary" in the eyes of a candidate as surrendering one's wallet is to a pedestrian staring into a shotgun barrel: Either way, you've been mugged.
Mandatory spending limits are unconstitutional, the United States Supreme Court ruled in the landmark 1976 Buckley v. Valeo decision because they arbitrarily limit campaign speech. Yet the court indicated that purely voluntary spending limits would be constitutional if an incentive like taxpayer financing were offered in return, which is how the presidential system works. Proponents of congressional campaign spending limits have been stymied by the public's disdain for taxpayer-funded campaigns and the F irst Amendment's requirement of voluntary limits. In a desperate bid to get their bill out of the Senate, proponents eliminated the upfront incentive - taxpayer-funded "communication vouchers" - and beefed up the punishment provisions.
Under the revised bill, candidates who agreed to a spending limit would receive a half-price discount on broadcast advertising and a discounted mailing rate. Candidates who exercised their First Amendment right not to limit their campaign speech would not only be denied the broadcast and mailing discounts. They also would be forced to run self-incriminating disclaimers in all their ads (a political scarlet letter), and would be stuck with onerous reporting requirements. Further, if the "noncomplying" can didate spent one penny over the "voluntary" limit, the "complying" opponent would receive a government grant equal to one-third of the spending limit. Spending one penny over 133.3 percent of the limit would trigger another government grant to the "complying" candidate. And spending one penny over 167.7 percent would trigger yet another grant and lift the spending limit for the "complying" candidate. These grants would be paid for by the "speech tax."
The bill also contains a taxpayer-funded independent-expenditure provision to counteract speech by private citizens "in opposition to, or on behalf of an opponent of" any complying candidate. For example, if the NAACP or B'Nai B'rith were to spend money to oppose the Senate candidacy of David Duke, the ex-Klansman would be eligible to receive dollar-for-dollar taxpayer-funded matching grants.
Many newspapers continue to cheer this effort, despite its constitutionally offensive provisions. Yet by sanctioning this assault on the First Amendment, they are paving the way for equally offensive restrictions. Only one tiny "loophole" in the federal election law keeps newspaper endorsements of candidates from being regulated as independent expenditures. One could imagine an amendment to give complying candidates extra federal money to counteract hostile newspaper editorials.
Such an amendment would be expensive, so the next campaign finance bill might include a tax on campaign-related editorials. Some would think it a small price for newspapers to pay in return for favorable mailing rates and in the interest of leveling the playing field. In the new reform frontier, where even newspapers applaud the trashing of the First Amendment, anything is possible.