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Gall: Ornstein Is Wrong on the DISCLOSE Act

In his Roll Call column Republicans Need to Support DISCLOSE and START (Nov. 22), Norman Ornstein chastises Republican Senators — especially John McCain (Ariz.), Olympia Snowe (Maine), Susan Collins (Maine) and Scott Brown (Mass.) — for failing to support the DISCLOSE Act. Ornstein believes, probably correctly, that if DISCLOSE doesn’t pass during the lame-duck session, it will never pass.

Failure to pass DISCLOSE, Ornstein says, will make what he believes to be a bad state of political affairs even worse:

“Disclosure alone will not stop the arms race that is going to escalate even more in 2012 and motivate every Member up for re-election that year to put pedal to metal in the next two years to raise money every spare minute to counter the likely assault on them over the airwaves by hit groups funded by corporations, unions and billionaires.

“The urgent need to raise more and more money will lead inevitably to more and more corruption, trading votes or other favors for campaign cash or shaking down prospective donors. But disclosure at least can provide some counterweight.”

According to Ornstein, spending on speech is an “arms race,” the only outcome of which is the destruction of the way politicians would like to operate: without having to respond to the speech of people who disagree with them. Politicians should act to protect themselves from this speech “assault” — one Ornstein warns will be funded by “hit groups funded by corporations, unions and billionaires.”

So, if a group of Americans wants to say bad things about their elected representatives, Ornstein apparently considers them to be some sort of political assassins. In his view, corporations, unions and billionaires are the worst kind of these assassins, presumably because they have the capability of raising and spending lots of money on speech that can possibly persuade voters to vote against incumbents and for their challengers.

This effective speech is a bad thing because, Ornstein claims, politicians will react to it by becoming more corrupt as they try to raise more money to respond with their own speech. As evidence of this claim, he offers … well, nothing, other than wild speculation.

But if Ornstein is really concerned that the need to raise more money to “counter the assault” will become an all-consuming source of corruption, he could support the elimination of — or at least the raising of — limits on contributions to candidates. That would allow politicians to devote less time to fundraising while still having the opportunity to gather the funding they need to respond to “hit groups.”

Or better yet, Ornstein could argue in favor of reducing the size and scope of government. Less government power would result in less spending to attempt to influence that power.

But instead, Ornstein proposes that politicians enact legislation that, as its supporters have admitted, has the purpose of making it harder for people to exercise their First Amendment rights by joining together and speaking to other Americans about the most important political issues of the day.

In other words, he’s arguing that politicians should attack free speech so that there will be less of it.

Of course, saying so outright would reveal the hostility of his argument to free speech. So instead, Ornstein tries to delegitimize political speech by calling it an “assault” by “hit groups” that are escalating an “arms race.”

Although this argument would make George Orwell proud, it cannot, and should not, carry the day in a country where political speech remains protected by the First Amendment’s command (which, unsurprisingly, Ornstein never mentions) that “Congress shall make no law … abridging the freedom of speech.”

Bert Gall is a senior attorney at the Institute for Justice, which litigates nationwide in defense of free speech.

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