Big Lizards:Blog:Entry “Free Speech for Me AND for Thee”

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June 25, 2007

Free Speech for Me AND for Thee

Hatched by Dafydd

The realignment continues on the ship of state (that sounds weird somehow, but I'm too lazy to fix it). Today, the Supreme Court of the United States (SCOTUS -- which also sounds weird and vaguely salacious) cast out the most offensive provision of the McCain-Feingold Bipartisan Campaign Reform Act of 2002... the signing of which, and continued defense of, is the worst decision ever made by President Bush, a president I otherwise mostly admire.

The BCRA set contribution limits on individuals as well as corporations and -- in its most controversial section -- banned "issue ads" within 60 days of an election if they even so much as mentioned a candidate's name:

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

The Court ruled today that preventing the airing of ads violated the First Amendment's freedom of speech provision:

The decision upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group's First Amendment rights, the court said.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Chief Justice John Roberts wrote for the majority. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

Politically, the ruling is a horrendous body blow to the already faltering campaign of Sen. John McCain (R-AZ, 65%), one of the two eponymous senators who introduced the bill in the Senate (the other is Russell Feingold, D-WI, 100%), widely considered the most liberal fellow in the Senate. McCain seems to be enraged at the Court, perhaps seeing it as a personal insult to him that may require the Chief Justice to defend it with his body upon the field of honor:

The decision is a setback for Sen. John McCain, R-Ariz., who helped write the 2002 campaign finance legislation with Feingold that contained the advertising provision. McCain, now a presidential candidate, has come under criticism from conservatives for attempting to restrict political money and political advertising.

"It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election," McCain said in a statement. [That "narrow exception" appears to refer to the First Amendment to the United States Constitution, with which Sen. McCain takes issue.]

The court's decision, however, has no effect on the more far-reaching component of the campaign finance law - it's ban on the ability of political parties to raise unlimited and unrestricted amounts of money from unions, corporations and wealthy donors.

"Fortunately," McCain said, "that central reform still stands as the law."

Happily, Mitt Romney appears to have been the first Republican presidential candidate to applaud the demise of the odious "issue-ad" prohibition of McCain-Feingold.

I call this excellent ruling a realignment because the Court's reversal of a central provision of its December, 2003 ruling upholding the BCRA, McConnell v. Federal Election Commission, 540 U.S. 93 (2003), can be traced to one key event: President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor.

On the core findings in McConnell v. FEC, Justices O'Connor, Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg, and David Souter upheld all the most important elements of the law; the dissenters were Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Chief Justice William Rehnquist.

In today's ruling, every justice still on the Court voted the same as he or she did last time; Chief Justice John Roberts voted against the BCRA and in favor of freedom of speech, just as Rehnquist did. The only difference was that Justice Alito reversed Justice O'Connor's vote from pro-BCRA to anti.

I believe this signals a realignment of the Court, with a new 5-4 majority favoring more freedom for the individual at the expense of government control, except where the government can show a dire national emergency -- as with cases involving elements of the war against global jihadism -- or when the government stands "in loco parentis" of schoolchildren. And I think this ruling bodes very ill for those compulsive authoritarians, such as Sen. Diane Feinstein (D-CA, 90), who want to revive the "Fairness Doctrine": Surely the same five justices will agree that forcing a TV or radio show to broadcast political opinions contrary to those they hold, just to maintain a federally directed "balance of opinion," is also a violation of the fundamental (and constitutional) freedom of speech.

Asked if she would revive the fairness doctrine, which used to require broadcasters to present competing sides of controversial issues, Feinstein said she was "looking at it."

"I remember when there was a fairness doctrine," she said, "and I think there was much more serious correct reporting to people."

Yes. As "Uncle" Walter Cronkite's reporting of the Tet Offensive demonstrates.

In a shocking turn of events, the New York Times -- which, as a print newspaper, was exempt from the provisions of the BCRA on grounds of freedom of speech, and which thus was the major player in the news medium that held a monopoly on issue advertising during the last 60 days of an election -- bemoans the Court's decision today allowing broadcast media that same right:

By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.

The "loophole" in question would appear to be that pesky First Amendment again... "free speech for me but not for thee." The Times continues, giving the gavel over to dissenting Justice David Souter:

In the case decided today, Federal Election Commission v. Wisconsin Right to Life, No. 06-969, Justice David H. Souter wrote a dissent that Justices John Paul Stevens Ruth Bader Ginsburg and Stephen G. Breyer joined.

“After today,” the dissenters said, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”

The dissenters expressed dismay over today’s ruling and said it could portend a new wave of public cynicism about the role of big money in politics.When the case decided today was argued on April 25, Solicitor General Paul D. Clement, arguing on behald of the election commission, said that to find that the Wisconsin ads should have been allowed to run would leave the McCain-Feingold law “wide open.” Justice Breyer predicted then that a ruling like today’s could mean, in effect, “Goodbye, McCain-Feingold.”

Ooooh, if only! But two of the majority justices -- the two new guys -- decided to act like judicial conservatives who believe in judicial restraint, and they limited their decision to upholding the actual judgment of a three-judge panel of the D.C. Circus Court that heard the case. Rather than declare the entire provision unconstitutional, as Scalia, Kennedy, and Thomas did in a separate opinion, Roberts and Alito held only that the panel was right to rule that the "issue ads" of Wisconsin Right to Life, Inc. did not constitute "express advocacy," as banned by the BCRA.

(I think this is what lawyers call an "as applied" challenge, meaning that the court does not decide whether the law itself is unconstitutional but rather whether it was wrongly applied in the particular case.)

The refusal of Roberts and Alito to go as far as Scalia, Kennedy, and Thomas does not necessarily mean they disagree with the latter's position: Roberts' and Alito's understanding of judicial restraint may mean that they simply refuse to go beyond the particulars of the case to make sweeping judgments where none is required. In a clean challenge to that provision of the BCRA, they might very well vote to strike it down.

Sadly, the Bush administration doubled down in this case, filing an amicus curiae brief urging the Court to uphold the FEC's authority to ban the ads. Thus, the Bush psychodrama continues... although it's worth noting the administration's consistency: They support McCain-Feingold even against their own conservative Republican supporters... Bush is an equal-opportunity free-speech denier.

Nevertheless, I now expect to see a flurry of conservative, 5-4 decisions emanate from the penumbra of this Court, as the judicial realignment proceeds apace. Keep watching the skies!

Hatched by Dafydd on this day, June 25, 2007, at the time of 2:33 PM

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Comments

The following hissed in response by: Terrye

But, Bush also appointed Roberts to the court, so I guess it all comes out in the wash.

Meanwhile, the new hero of the conservative movement, Fred Thompson, wrote an amendment to McCainFeingold with Diane Feinstein. He was also a strong supporter of the bill.

The above hissed in response by: Terrye at June 25, 2007 4:01 PM

The following hissed in response by: Fritz

I still don't understand why people seem so eager to accept laws against free speech. I can understand the idiots in government wanting it because it enables them to stay in power, but the people should have voted out anyone who voted for BCRA. That one item is why I will never vote for McCain. I may end up not casting a vote, but if McCain gets the nomination he won't get my vote. How can a person trust anyone who has so little regard for our basic rights?

The above hissed in response by: Fritz at June 25, 2007 6:06 PM

The following hissed in response by: LarryD

Given the results of research on media bias, a fairness doctrine should be the last thing the MSM wants.

The above hissed in response by: LarryD at June 25, 2007 6:23 PM

The following hissed in response by: Rovin

(I think this is what lawyers call an "as applied" challenge, meaning that the court does not decide whether the law itself is unconstitutional but rather whether it was wrongly applied in the particular case.)

Would it be prudent to present the "particular case" as soon as possible?

I originally thought Bush signed this bill knowing that SCOTUS would throw it out. Not so sure now. Now would also be the time to let Mr, Thompson know how many conservatives feel very strongly about McCain-Feingold getting it's deserved abortion.

The above hissed in response by: Rovin at June 25, 2007 7:01 PM

The following hissed in response by: Seaberry

5-4 sounds good...7-2 would be better.

The above hissed in response by: Seaberry at June 25, 2007 8:17 PM

The following hissed in response by: nk

SCOTUS -- which also sounds weird and vaguely salacious

It is the Latinization of Gr. skotos meaning "darkness", ordinary or metaphorical (as in Genesis before Creation) depending on the context. (That's how Scotland got its name -- the Romans thought it a dark place of a dark people.) The application of this meaning to our nine black-robed overlords might be thought appropriate by some captious individuals.

The above hissed in response by: nk at June 25, 2007 9:07 PM

The following hissed in response by: The Yell

McCain's statement is asinine. The case before the Court did not involve "corporate or labor" expenditures, it involved a citizen-organized not-for-profit organization pushing its pet issue--the pro-life agenda that McCain is trying to use as leverage against Romney and Giuliani.

Guess he's pro-life as long as we agree he'll do the talking...

The above hissed in response by: The Yell at June 26, 2007 12:41 AM

The following hissed in response by: Terrye

I never really thought of it as a free speech issue. I thought of it as a money issue.

The above hissed in response by: Terrye at June 26, 2007 3:31 AM

The following hissed in response by: snochasr

Thank Heaven for small favors with big consequences. But if I may stare at the half-empty glass a bit, I'm not happy. I always thought that the "central pillar" of M-F-- the ban on "soft money" for parties, was the most damaging piece, it weakened political parties, resulting in more "independent" candidates-- RINOs and DINOs-- who felt they could vote however they darned well pleased, leading to our current muddled and confused governance. Worse than that, it completely denies the Freedom of Association guaranteed by the same first amendment, if I cannot donate what I want to an organization of my choice. Why that challenge hasn't been brought, I don't know.

The above hissed in response by: snochasr at June 26, 2007 6:36 AM

The following hissed in response by: DrMalaka

I thought the most telling quote was in the dissent:

'The single dissenting opinion — penned by Justice Souter and joined by Justices Stevens, Ginsburg, and Breyer — argued that the majority's opinion flew in the face of Congress's will and would breed "pervasive public cynicism" about the American political system.'

Are these four idiots serious? The majority's opinion flies in the face of Congress' will? What country do these guys live in?

Can we really be at a point in time where four SCOTUS justices think that their job is to follow Congress' will and not the Constitution?

Am I to believe that if Congress passed a law outlawing unions or welfare that these four justices would rule that it was a good law because that is what Congress wanted to do?

I know in terms of Breyer and Ginsburg that they are not qualified to be on the bench. They do not uphold the Constitution, they basically decide what they personally think the correct outcome should be to a case and then try to find some law to justify their feelings. Roe v Wade is a great example of this type of jurisprudence. The majority of the court decided that abortion should be legal then they justified that position by finding it a privacy right.

Left wing jurisprudence defined: first decide what you think is right then justify it.

The above hissed in response by: DrMalaka at June 26, 2007 8:21 AM

The following hissed in response by: Dafydd ab Hugh

Snochasr:

Worse than that, it completely denies the Freedom of Association guaranteed by the same first amendment, if I cannot donate what I want to an organization of my choice.

I don't understand what you mean. To which organization can you not donate what you want?

Dafydd

The above hissed in response by: Dafydd ab Hugh at June 26, 2007 12:54 PM

The following hissed in response by: snochasr

The national Democrat and Republican parties are restricted in the amount of "soft money" they can accept, are they not? I cannot give a million dollars to the RNC.

The above hissed in response by: snochasr at June 26, 2007 4:51 PM

The following hissed in response by: Dafydd ab Hugh

Snochasr:

I don't believe they are, and I think you can, provided you have a million dollars. That money is called "soft money," however, and cannot be directly used to help this or that candidate in his race. It can be used for party building, party branding, party advertising, and so forth.

Soft money cannot become hard money; but I think soft money is unrestricted. Thus, if you decide you really, really, really love the GOP or the National Rifle Association or the National Right to Life Society (or MoveOn.org, the Democratic Party, or the Communist Party of America), I believe you may legally give them any amount of money you choose.

There are restrictions on what they can do with that money; but they can accept it.

Dafydd

The above hissed in response by: Dafydd ab Hugh at June 26, 2007 7:05 PM

The following hissed in response by: snochasr

Well, yes, I believe that you are wholly correct, and I should have stated my complaint accordingly. That the national parties cannot directly support candidates weakens their influence over those candidates, and thus limits the ability of the RNC to directly influence public policy. Donors to the RNC are denied the right to freely associate and pool their efforts to effect that influence-- what de Tocqueville saw as one of the strengths of our government system. The same is true of the NRA and other groups. This ruling helps, and a FAIR tax, getting rid of the 501 and 527 codes, would help, too, but we have to get rid of all of M-F before our freedoms are fully restored.

The above hissed in response by: snochasr at June 27, 2007 10:25 AM

The following hissed in response by: boffo

This is off-topic to your post, but I wonder if you will still be a Romney supporter after reading this.

Mitt Romney strapped his pet dog to the roof of his car for 12 hours of highway travel so that he could efficiently travel to his vacation destination. And when the dog was so terrified that it crapped itself, Romney's only response was to wash the feces off the car and continue on his way, with the dog still strapped to the roof.

Regardless of politics, I think that such cruelty to animals - especially to one's own pet - is a sign of sociopathy. An even bigger warning sign is that Romney is apparently proud of this incident, because it demonstrates how efficient he is.

Mitt Romney is an evil, disgusting human being, and whatever political opinions he holds don't change that. I would prefer any of the Democrats to someone who is so cruel and self-centered as to think being able to take extra stuff to a vacation destination is worth such horiffic treatment toward his own pet.

The above hissed in response by: boffo at June 28, 2007 11:26 AM

The following hissed in response by: boffo

This is off-topic to your post, but I wonder if you will still be a Romney supporter after reading this.

The above hissed in response by: boffo at June 28, 2007 11:27 AM

The following hissed in response by: boffo

And as a practical matter, there's no way Romney could ever be elected president now that this incident is known. I'm sure countless Democratic activists are salivating over the possibility of him winning the Republican nomination, knowing that they can hype this story right before the election and ensure that every pet owner in the country would (rightfully) be completely disgusted by him.

The above hissed in response by: boffo at June 28, 2007 11:29 AM

The following hissed in response by: Dafydd ab Hugh

Boffo:

What is the Globe's source for this story? I cannot find any reference to this story from any news source, or indeed any blog, that does not simply cite the completely unsourced Globe story... or Anna Marie "Wonkette" Cox's blogpost about that same story.

Before leaping aboard this bandwagon (or even investigating the particulars), can't we at least see if anybody but the notoriously and rabidly anti-Romney Boston Globe independently reports this?

(Bear in mind, this is the same newspaper that published a lengthy "biographical" series on John Kerry that accepted at face value his claims about spending Christmas in Cambodia and the CIA operative who gave him a magic hat.)

I have never understood this impulse: On literally scores of occasions, we find the elite media lie, lie, lie, often about major stories -- does "Police Captain Jamil Hussein" ring any bells? The bombed "wedding party?" The "worst economy since the Great Depression?"

But then a newspaper, fully within the drive-by media, reports a story that makes a major GOP candidate for president look like a vicious and cruel thug -- oddly enough, the candidate that newspaper hates most -- and Republicans immediately seize upon the story and cast out the infidel. Just like that, we believe serial liars -- because they say so!

Before we talk about particulars, please find me some source other than the bare say-so of people tasked with writing a hit piece on Mitt Romney... and who don't even claim to have a witness: Although the article frequently quotes Tagg Romney and Mitt Romney himself, nobody is quoted for the Seamus story: It just appears in powerful narrative form, seeming like something that everybody in the world knows.

An even bigger warning sign is that Romney is apparently proud of this incident, because it demonstrates how efficient he is.

What do you base this on? Nothing like this appears even in the Globe story.

Mitt Romney is an evil, disgusting human being, and whatever political opinions he holds don't change that. I would prefer any of the Democrats to someone who is so cruel and self-centered as to think being able to take extra stuff to a vacation destination is worth such horiffic treatment toward his own pet.

Then the hit piece has succeeded: If Romney is nominated either as president or vice president, you will vote for Hillary Clinton instead... even if nobody ever picks up this story, no corroboration is ever cited, no investigation ever made, no questions ever asked, and even if the Romney campaign emphatically denies it.

For that matter, even if everyone involved denied it, odds are that many former Republicans will continue to believe it: We are always eager to believe the worst about people we otherwise admire.

So the Globe has succeeded: True or false, they have damaged Mitt Romney. Just as they intended.

Dafydd

The above hissed in response by: Dafydd ab Hugh at June 28, 2007 1:30 PM

The following hissed in response by: The Yell

I believe the Globe story said he strapped the dog's CARRIER CRATE to the roof.

I don't know any way of transporting a dog to the DOG'S liking, except perhaps WALKING the whole way with the dog.

Even a kennel stay is a disorienting and arguably CRUEL treatment of a dog. If you give a damn what a dog thinks.

Rest assured, if elected, Mitt Romney will be able to have the dog airlifted to the destination with a minimum of discomfort. Or perhaps just have a different dog waiting at each destination.

The above hissed in response by: The Yell at June 28, 2007 2:08 PM