By Dave Andrusko
A Sad, Sad Day
"This is a sad day for the freedom of speech. Who could have imagined that the same court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of _expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. ... The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech."
From the dissent of Justice Antonin Scalia in the Supreme Court's 5-4 decision upholding most of the McCain-Feingold "campaign finance reform" legislation
"Our precedents teach, above all, that government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations."
From Justice Anthony Kennedy's dissent
"To critics of the ruling, including dissenting Justice Antonin Scalia, giving congressional incumbents a virtually free hand to set the rules of elections is like letting the reigning Scrabble champion rewrite the dictionary."
From "McCain-Feingold Ruling Angers Activists on Both Left and Right," by David Von Drehle, Washington Post
Let me begin by referring you to James Bopp's and Richard Coleson's thoughtful explication of the High Court's tragically misguided McCain-Feingold decision, technically known as McConnell v. Federal Election Commission, on page 24. Unlike yours truly, theirs is an attorney's view of a very complicated decision.
But perhaps a layman's explanation may be of some help. After all, when a thin majority of the Court roams this far out to sea, we barely need leave port before we know the Constitution has hit a judicially created iceberg.
As we have learned to our dismay in other areas - - such as abortion - - anytime the Court writes opinions that purport to deal with "real world" effects, the Constitution is in deep trouble. The pose of worldliness simply gives the justices license to impose their policy preferences in the guise of interpreting the Constitution.
As I say, I am no expert in this area, and make no pretense otherwise. But there are several comments that are worth making, largely because they are lifted from people who are well-versed in the arcane "science" of campaigns and finance.
As pro-lifers who are deeply enmeshed in public policy, there are a number of profoundly troublesome provisions in McCain-Feingold. We are deeply concerned, for example, by the "onerous restrictions on the ability of citizens of ordinary means to pool their resources in citizen groups to amplify their voices on public issues," as Bopp put it the day the decision was rendered.
"One of the worst restrictions is the ban on 'electioneering communications,' defined as mentioning a candidate's name in a broadcast communication within 60 days of a general election (30 days before primaries)," Bopp continued. "By upholding this ban, the Court prohibits public-interest groups from telling the public where candidates stand" on such vital issues as abortion, cloning, euthanasia, and the like. "Legislation is often being finalized in the weeks before an election, and [the McCain-Feingold] ban prohibits citizen groups from broadcasting an appeal to call Senator X (who is a candidate) and tell him to oppose a bill called by its sponsors' names (who are candidates)."
Speaking of "real world" implications, if you examine the current level of public awareness of the Democrats running for their party's presidential nomination, what could not be clearer is that only a tiny sliver of activists are up to speed. Which is only to say that ever and always politics does not appear on most people's radar until way late in the game.
By severely restricting what public policy groups such as NRLC and its affiliates can do in the last month or two before an election (or primary), the Court is ensuring that such independent voices are muffled just at the time when their contribution can have its greatest impact. Incumbent politicians already have an extra-ordinary advantage over their challengers. Over 90% are re-elected. It is not for nothing that McCain-Feingold has been dubbed "the incumbency protection plan."
But no discussion, however preliminary, would be complete without at least a quick discussion of the media's role in advancing the cause of campaign finance "reform." We need to remember that as bad as this decision is, it could get much worse. Once it becomes clear that the results do not unfold as "reformers" would like them to, they are very likely to return with even harsher, more punitive measures.
No one has been a louder cheerleader than such Media Behemoths as the Washington Post and the New York Times and the major television networks. They affect a posture of disinterested concern for the "corrupting" influence of money in politics. The truth is considerably more complicated.
There is a reason that groups that virtually never agree on anything else (NRLC, the American Civil Liberties Union, and the National Rifle Associate [NRA], for example) all strongly opposed McCain-Feingold. And it is not exclusively, or even primarily, because of the people they speak for. They resist because free speech is too important to be left to Media Titans to parcel out, especially when they are anything but above the fray.
"Critics also noted that the major television outlets are owned not by disinterested charities but by major corporations: Disney owns ABC, General Electric owns NBC, Viacom owns CBS, Time Warner owns CNN," as the Washington Post's David Von Drehle wrote.
"These conglomerates spend millions in political contributions to influence legislation, but whatever they decide is news will be all over the airwaves until Election Day," NRA Executive Vice President Wayne LaPierre told Von Drehle. "Somehow they are pure, while AARP or the NRA is not." There is no polite way of putting this, nor need to: The Constitution suffered a tremendous hit.
Let me close with this final paragraph from Von Drehle's story:
"The whole thing was 'incomprehensible' to storied First Amendment lawyer Floyd Abrams, who felt the nearly 300-page ruling missed the fundamental importance of political speech. 'It almost reads like a tax case rather than a First Amendment case,' he said. 'In style, tone and nature, it reads like an opinion about regulation by government of some sort of improper activity.'"
Dave Andrusko can be reached at daveandrusko@hotmail.com