The Democracy Campaign recently estimated that special interest groups spent $4.8 million to influence the state Supreme Court race. A spokesman for the top spender, Wisconsin Manufacturers and Commerce, insisted our estimate was inaccurate but wouldn’t say why and refused to offer up any numbers to prove it wrong. He repeated for the umpteenth time the company line that groups like WMC have a First Amendment right to keep the public in the dark about how much is spent to sway voters and where that money comes from.
In effect, those who are taking ownership of our courts and our state legislature and our governor are saying that they have a constitutional right not only to wield daggers in the political arena but also to hide under cloaks while they do it.
What they also are effectively saying – over and over and over again until even people who ought to know better accept it as a universal truth – is that we have to choose between judicial independence and free speech. Or choose between open, honest government and the right to speak.
Those are false choices.
No constitutional right is absolute or unconditional. Among other things, the First Amendment guarantees freedom of the press. But ask any of the countless journalists who have been jailed or the judges who put them behind bars if there are limits to that freedom.
Or take the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Put aside for a moment that some believe the “well regulated militia” clause means the Second Amendment bestows a collective right to bear arms, not an individual right. Most people, and most courts, believe it protects an individual’s right to possess weapons. But that doesn’t mean that individuals have an unconditional right to keep and bear any and all arms. For instance, no one in their right mind would say the Second Amendment establishes an individual’s right to possess nuclear arms.
Just as an individual’s possession of a weapon of mass destruction would pose an intolerable threat to other community members’ rights to life, liberty and security, the First Amendment right of free speech likewise can be exercised in a way that does violence to citizen rights and the common good.
We have reached that point in Wisconsin politics.
In the Supreme Court election, two lobbying groups and three very shadowy front groups did 90 percent of the television advertising. With five interest groups doing almost all of the talking, the candidates in the race largely became bystanders in their own election. They had the right to speak, but virtually no way to be heard. A lot of good the First Amendment did them.
Voters got even more of a raw deal. Elections are supposed to be dialogues between candidates and voters. This one was a special interest monologue. The First Amendment wasn’t worth the paper it’s written on to ordinary citizens in this election. On top of that, in the name of the First Amendment voters were denied essential information about who paid for the more than 12,000 TV ads that were aired in the Supreme Court race, or even how much they cost.
It’s time we start distinguishing between the exercise of free speech and the abuse of it.