Under current regulations, most nonprofit organizations are free to advocate for or against any public policy at any time, including being critical or supportive of public officials connected to those policies. The main limitation is that they cannot expressly ask voters to cast their ballots for or against particular candidates for office. This may seem like splitting hairs, but if we are going to make a distinction between partisan organizations that exist to elect people to office and nonpartisan organizations that advocate on issues, this is not a bad way to do it.
Under the proposed regulations, however, most nonprofit organizations will be prevented from “promoting, supporting, opposing or attacking” a candidate for federal office. This means that elected officials who are making policy and running for office at the same time would be immunized from criticism of their policy decisions. The Sierra Club, for example, will not be able to attack President Bush for his environmental record once he officially becomes a candidate for re-election, just as the American Civil Liberties Union will not be able to question his record on civil liberties.
But presidents are only elected every four years. Members of Congress, who run for office every two years, will be free from criticism for a large portion of every term.
At first blush the proposed regulations may seem fair since they apply to everyone, thereby equally affecting groups across the ideological spectrum. But even a rule that is applied the same to all is dangerous if it suppresses speech. Would we say it is fair to gag newspapers so long as those with left-leaning editorials were treated the same as those that lean to the right?
This proposal ultimately targets the disadvantaged. The list of nonprofit advocacy groups is dominated by those representing the powerless and voiceless. If the FEC rules are adopted, organizations that speak on behalf of the homeless, the disabled, the poor, immigrants, and racial minorities will be most affected. Unaffected will be the well-heeled corporations that do not need nonprofit groups to broker their considerable power in the halls of Congress.
Free speech is a bedrock principle of our society. It leaves us unfettered to express our opinions, pester our elected representatives and join public protests. It allows newspapers, magazines and blogs to explore every issue of social and political import. It gives birth to new ideas, and it keeps public officials accountable.
But if the post-9-11 era has taught us anything, it is that free speech is a delicate concept. It may exist in theory, but between the rules that regulate everything from the broadcast media to the actions of advocacy groups, the government exercises considerable control over speech when it wishes.
This is a far cry from where we started, when the newly adopted Bill of Rights prevented the state from suppressing speech and the state was a relatively weak entity. Now, in order to fully exercise our right of free speech, we must often make a devil’s bargain with the government. The tax-exempt status of nonprofits, for example, enables them to devote all their revenues to their objectives and, in many instances, accept tax-deductible donations. In exchange, nonprofits agree to the government’s rules on how the money is raised and used.
The current administration has done everything in its power to squelch speech since 9-11. First we were told that it was unpatriotic to criticize the administration’s policies on fighting terrorism. Now, from no-fly lists that target dissenters more than terrorists, to protest buffer zones around government officials, to easing FBI access to library records, our speech is chilled in ways that would have been inconceivable only a couple of years ago.
In this context, the proposed FEC regulations should come as no surprise. But of all the recent attacks on free speech, this quiet little change deep in the labyrinth of government regulatory schemes could have the greatest impact of them all. S
Kent Willis is executive director of ACLU of Virginia
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