Congress Continues Assault on Freedom of Speech

Campaign finance “reform”, aided by a series of disastrous court rulings, continues to shred the First Amendment’s protections for political speech. Some in Congress, however, are fighting back. Valiant efforts by Rep. Jeb Hensarling (R-Texas), Republican Study Committee Chairman Rep. Mike Pence (R-Ind.), and others to protect the Bill of Rights were regrettably unsuccessful last week, but they did substantially advance the debate. Their legislation, H.R. 1606, Online Freedom of Speech Act, was defeated on the House floor last Wednesday, but a majority of Congress supported the bill. However, Congress was considering the legislation under the “suspension calendar” which requires a 2/3 majority vote. The bill did not meet this threshold and failed to pass. FreedomWorks hopes they will make another attempt to pass H.R. 1606 soon.

H.R. 1606 would amend the Federal Election Campaign Act to exclude Internet communications from the Act’s definition of “public communication.” The bill is commonly regarded as the “blogger protection” bill since it addresses concerns that bloggers who regularly engage in mass public communications will become subject to federal campaign finance regulations—- especially if they reference a federal candidate 30 days before a primary election or 60 days before a general election. Of course, all restrictions on speech content offend the Constitution, but protecting bloggers will be a good first step.

The courts’ performance in this regard is a national disgrace. In September of 2004, U.S. District Court Judge Colleen Kollar-Kotelly ruled that it was not clear in the Bipartisan Campaign Reform Act (BCRA) that the Internet should be fully exempted (even thought the Internet was not mentioned in the law) and directed the Federal Election Commission revise regulations to encompass Internet speech. And the U.S. Court of Appeals for the D.C. Circuit upheld the district court decision. Now, only an act of Congress signed into law by the President can stop this judicially-ordered regulatory re-write.

Sadly, the ruling should have been quite easy for Judge Kollar-Kotelly; for guidance she could simply refer to the First Amendment, which reads in part,

“Congress shall make no law … abridging the freedom of speech, or of the press…”

Let’s hope that a majority of Congress manages to read the First Amendment before the next vote on H.R. 1606.