First Amendment issues peppered Edwards’ Senate career

Wednesday, July 11, 2007

One in a series of articles on the First Amendment record and views of
2008 presidential candidates.

When he was 11, presidential candidate John Edwards wrote an essay titled,
“Why I Want To Be A Lawyer.”

The key reason he gave, Edwards recalled in a 2004 book, was that “I would
like to protect innocent people from blind justice the best I can.”

To an 11-year-old, blind justice sounded bad, not good, but the goal was
clear. And it animated Edwards’ legal career, pushing him in the direction of
personal-injury law, seeking recompense for those injured by corporate or
medical wrongdoing.

As a result, First Amendment law was not a major feature of his legal
practice. But when he was in the Senate from 1999 to 2005, he was called on to
take stands on several free-speech and religious-freedom issues.

His most prominent First Amendment stance in the Senate was in favor of the
McCain-Feingold campaign-finance legislation in 2001. When it was signed into
law as the Bipartisan Campaign Reform Act, it became the target of several
challenges — largely unsuccessful — on First Amendment grounds.

On April 2, 2001, lead co-sponsor Sen. Russ Feingold, D-Wis., said on the
floor of the Senate that Edwards was a “terrific asset” in advancing the bill
toward passage.

During the debate over the law, Edwards made several speeches asserting that
the law was constitutional under the framework of the Supreme Court’s 1976
decision in Buckley
v. Valeo.
In the context of earlier campaign-finance legislation, that
decision upheld limits on contributions to campaigns but not on spending by

“There has been some suggestion during the course of this debate that there
is a serious question about constitutionality,” Edwards said in March 2001 on
the Senate floor. “In fact, there is no serious question about that.”

All that is needed under Buckley to justify limits on soft money in
campaigns, Edwards said, was a showing of a compelling state interest. Then and
now, Edwards said, the state interest was in preventing the appearance of
impropriety that accompanies raising large amounts of money for campaigns.
Edwards spoke of “the need to return this democracy to the voters and to remove
the influence of big money or the appearance of influence of big money.”

Edwards also made a spirited defense of the part of the law that restricts
campaign advertising in the months before primary and general elections. During
pre-election time periods, electioneering ads paid for by direct treasury funds
of unions and corporations are banned.

Six years later, the Supreme Court struck down that provision as a First
Amendment violation. In Federal
Election Commission v. Wisconsin Right to Life,
decided June 25, 2007,
the Court said, in the words of Chief Justice John Roberts Jr., “Enough is
enough.” He said the Wisconsin group’s ads were clearly a form of political
speech deserving First Amendment protection. “Where the First Amendment is
implicated, the tie goes to the speaker, not the censor,” wrote Roberts. The
Court’s liberal minority would have upheld the ban on such ads.

In a statement released two days later attacking the Supreme Court for
several of its rulings, Edwards said that in the campaign-finance decision, the
high court “dramatically restricted Congress’ power to keep corporate money out
of political campaigns.”

Back when the law was passed, Edwards had no doubts about its
constitutionality. Again citing Buckley, Edwards said the provision met
the Court’s requirement that the law must advance a compelling interest and must
be clear, narrowly tailored and not overbroad.

“The Court, in reaching that conclusion (in Buckley,), first
recognized that the First Amendment in the case of electioneering — which is
what we are talking about, campaign ads — is not absolute,” Edwards said. “There
are certain circumstances where First Amendment rights can be restricted, but
only if these tests are met.”

On church-state issues, Edwards gave probably his fullest description of his
views in a recent interview on

Without hesitation, Edwards said his Christian faith would influence his
decision-making as president. “I do believe in the separation of church and
state. But I don’t think separation of church and state means you have to be
free from your faith,” Edwards said. “My faith informs everything I think and
do. It’s part of my value system. … I would not, under any circumstances, try
to impose my personal faith and belief on the rest of the country. I don’t think
that’s right. I don’t think that’s appropriate. But freedom of religion doesn’t
mean freedom from religion. And I think that anything we can do to promote the
idea that people should express their faith is a good thing.”

On the question of prayer in public schools, Edwards said, “What I’m not in
favor of is for a teacher to go to the front of the classroom and lead the class
in prayer. Because I think that by definition means that that teacher’s faith is
being imposed on children who will almost certainly come from different faith
beliefs. Allowing time for children to pray for themselves, to themselves, I
think is not only okay, I think it’s a good thing.”

Asked what he thought about displaying the Ten Commandments in courthouses,
Edwards said it probably “causes more trouble than good.” He added, “How would
Muslims feel if they went into that courthouse, and how would people of other
faiths feel … if they were in the same circumstance?”

He said an Edwards presidency would see faith-based groups as a way to
deliver needed social services, but cautioned that church-state issues make it a
“tricky business.” Edwards said he would not favor giving federal funds to
faith-based groups that discriminated, and he would want auditing and
accountability for the use of the funds that might make religious groups
uncomfortable. “But, the bottom line is, if you can work through these problems,
I think there is a great potential delivery system there.”

Edwards has also opposed school-voucher programs that provide aid to
religious schools.

On other First Amendment issues during his term in the Senate and since,
Edwards has staked out these positions:

  • Against a proposed constitutional amendment that would have enabled Congress
    to pass laws banning flag desecration. “I believe flag-burning is a despicable
    act, but I do not support a constitutional amendment to prohibit flag-burning,”
    Edwards said in 2004.

  • In favor of a 2002 resolution voicing disapproval of a ruling by the 9th
    U.S. Circuit Court of Appeals that would have removed the words “under God” from
    the Pledge of Allegiance. Along with 98 other senators, Edwards said the Senate
    should join the case to defend the constitutionality of the words “under God.”

  • In support of allowing broadcast of federal court proceedings. He
    co-sponsored a bill in 2001 that would allow camera access, but it was not acted

  • Against closing portions of the 1999 Senate impeachment trial of President
    Bill Clinton to the public.

    In October 2007, the Associated Press reported that a University of North Carolina journalism professor had accused Edwards' campaign of demanding that the professor pull a student reporter's television story about the national campaign headquarters' upscale location in Chapel Hill.

    C.A. “Charlie” Tuggle, an associate broadcast professor, said the Edwards campaign contacted the reporter, second-year master's degree student Carla Babb, asking that a video of her report be removed from the Internet. When that failed, the campaign demanded in three calls to Tuggle that the TV story be killed, he said.

    The campaign had said the reporter misrepresented the story she planned to do, Tuggle said.

    “Was it what the campaign was expecting it to be? No,” Tuggle said. “But I don't know that we're obligated as journalists to tell that the focus of a story has changed.”

    The Edwards campaign had no comment on the professor's specific contentions. More generally, spokeswoman Colleen Murray said: “This is silly. We love all reporters, the problem is the feeling isn't always mutual.”

    Intern Melanie Bengtson contributed research for this report.