Rating the leading Presidential candidates on First Amendment issues. And the winner is . . .
By Peter Scheer
Voters generally don’t pick a presidential candidate on the basis of a single issue–nor should they. But with the presidential campaign accelerating toward potentially decisive primaries in the next few weeks, it’s worth considering how the leading contenders compare in their commitment to First Amendment rights.
All political leaders are champions of free speech and open-government--in a vacuum. The real question is how they would balance those principles against competing interests in decisions involving issues of national security, economic policy and the like–all made in a politically-charged setting that is awash in campaign contributions.
One can only speculate, of course . . .
Clinton
Hillary Clinton, as the most wonkish of the leading candidates (that’s not a criticism), impresses as someone who has thought hard about the role of First Amendment rights. As a lawyer with an elite legal pedigree whose first professional gig was investigating Richard Nixon’s predations against civil liberties during Watergate, she has an appreciation for both the danger of excessive governmental secrecy, and the importance of the press as an institutional counterweight.
On the other hand, as a subject of Congressional investigation during hearings into her and Bill Clinton’s business dealings in the Whitewater matter, Hillary Clinton was not exactly a model of openness. (Recall the law firm files that were lost and then found in the Presidential living quarters of the White House.) And she was justly criticized, in her role as top healthcare advisor in her husband’s first term, for the overly secretive process she used for drafting legislation to create a system of national health insurance.
Obama
Barack Obama has the advantage, on this as on other issues, of being a relatively clean slate. In his favor is his impressive intellect: One does not get to be Editor of the Harvard Law Review or professor at the University of Chicago Law School without an understanding of the First Amendment, and constitutional law generally, to rival that of most Supreme Court justices. Obama’s years as a community organizer in Chicago were instructive about the uses of free speech and political activism to overcome official indifference. And Obama doesn’t seem to be the sort of political figure who is obsessive about secrecy. His own life, as described in unusual candor in Obama’s autobiographical writings, is an open book–literally.
On the other side of the ledger, Obama has gotten very far without having to say very much about what he would do as President. His channeling of John F. Kennedy in stirring speeches that appeal to voters’ hunger for transformative leadership are long on emotion and short on specifics. While politically astute, that strategy undermines promises that an Obama administration would emphasize transparency in decision-making.
Obama as president would preside over numerous policy debates in which national security advocates will argue for more potent means of monitoring suspected enemies and fighting terrorism. The requested enhancements in government power will exact a price in civil liberties–mostly incremental, but occasionally huge, as after the 9/11 terrorist strikes. Would Obama resist these enhancements (at the risk of being seen as weak on national security matters), or, like President Kennedy, would his relative lack of foreign policy experience cause him to defer to the judgments of advisors who inevitably undervalue First Amendment rights?
McCain
John McCain is Obama’s opposite in this regard. A war hero, McCain is not likely to be intimidated by neocons urging a more robust counterterrorism policy or a more bellicose foreign policy. On the other hand, McCain, an activist conservative in national security matters, agrees with the neocons (except on the issue of torture). If McCain’s neocon outlook is a problem for you, that’s a problem.
McCain is the darling of the media, which is a plus. The media love McCain not only because of his accessibility to reporters but because of his willingness to tell audiences what they don’t want to hear: To voters in Michigan, that auto manufacturing jobs aren’t coming back; to farmers in Iowa, that government subsidies for ethanol are bad public policy and a waste of tax dollars. McCain seems almost to revel in speaking inconvenient truth.
McCain’s loathing for political doublespeak and pandering, his preference for candor over popularity, would suggest a predisposition as President to conduct government affairs with a high degree of openness and transparency. On the other hand, McCain’s serial authorship of defective campaign finance laws, repeatedly slapped down by the Supreme Court as violative of the First Amendment, may reflect an indifference to constitutional safeguards for political speech. (Unless, like McCain, you reject the Supreme Court’s equation of money and speech.)
Romney
Republican candidate Mitt Romney is a consummate investor and businessman. Business people have an abiding faith in transparency (as buyers, that is; as sellers they want to disclose only information that boosts the sales price). That faith might translate to political affairs, should Romney be elected President.
Although Romney was Governor of Massachusetts for four years, he has spent more of his professional life in the private sector than any of the other leading candidates. People who spend many years in government tend to view policy issues from a government perspective. They are, more often than not, hostile to the press, government’s natural adversary. They favor a powerful central government. If they have served mainly in the executive branch, they tend to think that the executive is the most competent and professional branch, and the branch of government most focused on the public interest (in contrast to Congress, which they view as a captive of parochial, special interests).
While Romney is hardly a libertarian, he may be favored by First Amendment advocates who believe that freedom of speech is inversely related to the power of government. On the other hand, Romney has changed his positions on key issues so many times that voters may wonder whether the candidate they see in the primaries is the President they’d get if he were elected.
Presidents do matter, in the areas of First Amendment and open-government rights as elsewhere. Think about that as you walk into the voting booth. And when you decide who to vote for, please let us know.
——–
Peter Scheer, a lawyer and journalist, is executive director of CFAC. www.cfac.org
This column was reprinted as an Op-Ed in the January 28, 2008 issue of the San Francisco Chronicle.