The Washington Examiner has repeatedly argued in this space that political expression and advocacy, regardless of who is paying for it, is what the First Amendment exists to protect. We view campaign finance restrictions with suspicion, for they are intended by people in office to prevent the dissemination of facts and opinions that might threaten their power and privilege.
If you hear, or sometimes say, that dark money and anonymous opinion campaigns will cause the sky to fall, let us remind you that America survived publication of the “Federalist Papers,” a propaganda campaign that perfectly fits that description.
Such campaigns threaten the republic far less than do the 54 Senate Democrats who, in 2014, voted as a bloc to amend the Constitution to weaken free speech protections.
This is a view we have taken consistently, and repeated frequently, but we don’t begrudge our competitors for seeing things differently.
Take the Washington Post, for example, whose editors have over time staked out their reasoned opposition to the landmark Citizens United decision. That decision, the latest big one in campaign finance law, permitted unlimited donations by individuals for the sake of independent political expenditures, which have since proliferated. It also freed businesses to spend directly on such expenditures, but this, contrary to advance scaremongering and current perceptions, has never really taken off.
In its recent eulogy of Justice Anthony Kennedy, the Post’s editors referred to Citizens United as “the court’s ill-considered creation of corporate free-speech rights in political donations.” In 2016, they lamented the state of money in politics, arguing that the creation of the super PAC and its unlimited individual donations was creating an “oligarchy” of political participation and had “the potential to warp the political system.”
Given that the majority opinion in Citizens United presupposed some regimen for the disclosure of political spending, the Post’s editors have also argued for a measure to require donor disclosure by nonprofit organizations that run issue ads during election season. “What, exactly, is the problem with transparency?” they ask.
The Post’s position, then, seems clear.
Except, it really isn’t. For, at the moment, the Washington Post Company is in court challenging a Maryland campaign finance law. The law imposes heavy disclosure rules for online political ads. Not only does it demand robust disclosure messages like those required on television, but it also forces newspapers themselves to furnish and constantly update information about ad buyers.
The Washington Post’s attorneys argue that this state law violates the First Amendment by compelling news websites to publish what they would rather not. The Post’s arguments in court are persuasive and sound a lot like, er, editorials in the Washington Examiner.
“The challenged provisions purport to regulate paid political speech, which has been long recognized as core political speech,” the Post’s attorneys write in their complaint. “The right to the exercise of freedom of speech and of the press protects not only the right to publish, but the right not to publish. As a result, a long line of Supreme Court authorities has held that compelled speech is unconstitutional. … Such provisions are unconstitutional on their face.”
Hear! Hear! We welcome our colleagues at the Post to this expansive view of the First Amendment. Paid political speech is protected speech, as the Posties now acknowledge, and the shareholders, executives, and employees of the Washington Post Company haven’t sacrificed their First Amendment rights simply by joining together into a corporation. Exactly!
With this language about the right “not to publish,” the Washington Post is taking a laudable no-compromise position on the freedom of both expression and conscience. We look forward to editorials from the Post elucidating this view, and thus retracting past stingy views on free speech and religious liberty.
The Post’s lawyers also argue that “there is a stark difference between requiring speakers to disclose who they are … and imposing that burden on newspapers and other Internet publishers.” Here we disagree. Although this seems fair at first glance, it is harder than you think to sustain such a distinction. If there’s a First Amendment right not to print something , as we agree there must be, then how can political spenders who advertise not also enjoy that right, just as much as the newspaper corporations that publish their ads?
We know the Post’s lawyers don’t write their editorials and that the editors don’t write their legal briefs. The attorneys, along with those of the Baltimore Sun and several smaller Maryland newspapers, are rightly going to the trouble of fighting this law because it endangers their participation in a lucrative biennial market for state election ads, and print news is not exactly flush with cash right now.
But in fighting this fight, they are also nobly arguing for and upholding the constitutional rights that campaign finance reformers on the Left, including the Post’s editorialists, have long been working to undermine, beginning with their efforts to overturn Citizens United. So we salute the Washington Post’s attorneys and encourage its editors to follow their work carefully.
