Patterico's Pontifications

4/25/2007

Justices Hear Challenge to Speech-Squelching McCain/Feingold Law

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 9:24 pm



The Supreme Court today heard arguments in an as-applied challenge to McCain/Feingold’s ban on “sham issue ads” by corporations within 60 days of an election. The oral argument transcript is here.

Preliminary reports suggest that this is one area where the replacement of Sandra Day O’Connor by Samuel Alito may well make a huge difference. Justice Kennedy was already on what I view to be the correct side of the issue — namely, that such ads are core political speech that cannot be banned by Congress. Only Justice O’Connor stood in the way of a correct result the first time around — the good guys (pro-free speech and anti-McCain/Feingold) lost by her one vote. The replacement of O’Connor by Alito may well be critical, then — or so the commentators are saying.

I hope they’re right. Alito was quiet for most of the argument — he pipes up for a few questions around pages 23-25 of the transcript.

Long-time readers know that I consider the BCRA, and in particular the issue-ad bans, as egregiously unconstitutional restrictions of free speech. Hopefully today marks the beginning of a return to sanity on this issue.

18 Responses to “Justices Hear Challenge to Speech-Squelching McCain/Feingold Law”

  1. Hope they toss out everything back to Buckley.

    Kevin Murphy (0b2493)

  2. The BCRA decision was the high point (so to say) of O’Connor’s rambling, muddled jurisprudence. As much I disagree with the court on the D&X ban, hopefully a one-two sequence of hits on her decisions will make future justices give her opinions less weight than they otherwise would.

    jpe (95e6de)

  3. It is somewhat fitting that the Court heard the oral arguments on the McCain-Feingold Restriction on Speech Act on the day that Senator McCain formally announced thet, surprisingly enough, he’s running for president. It’ll be interesting to see how he campaigns for the Republican nomination if his signature piece of legislation gets (unfortunately only part of it) declared unconstitutional.

    I’ve said many times that if Mr McCain is the nominee, I’ll be voting third party.

    Dana (3e4784)

  4. I also will not vote for McCain. Ever.

    This campaign restriction law is against the First Amendment, yet it is seen as a lawful restriction?

    I would be for the McCain-Feingold law only as long as it also applies to newspaper, print, TV, and radio news outlets, so (say) NPR could not say anything at all about their beloved candidates as well.

    Let’s see how the news feels when the shoes are on their feet.

    steve miller (b356eb)

  5. a real “return to sanity” on this issue would be overruling the parts of the buckley and bellotti cases which suggest that corporations have the same right of free speech that people do.

    i would never vote for mccain either, and i am relieved that his chances have taken a downturn ever since he hitched his wagon to the troop surge. that isn’t what most of the voters want.

    assistant devil's advocate (0b72be)

  6. […] the entire article at the NYT and / or you can read the transcript of the oral argument here, h/t Patterico who comments: “Preliminary reports suggest that this is one area where the replacement of […]

    US Supreme Court Revisits Campaign Finance Law « Michael P.F. van der Galiën (eff216)

  7. I find it interesting that the same people who insist there is no inherent ‘right to privacy’ are
    supporting this Free Speech dodge.

    The court has already ruled that ‘free speech’ is not absolute (yelling ‘Fire” in a crowded theatre)

    Also interesting in the discussion I read was MoveOn
    never mentioned an ‘individual’ candidate, and therefore was not hampered by Mcgold.

    semanticleo (2f60f4)

  8. Any legislation designed to serve only the entrenched politico machine not only is unconstitutional should be able to attract enough mail to remind the politicos that if they pass it, they cast a vote for personal unemployment!

    Instantly as in Recall, impeachment or any other means available to the citizens to protect their constitution!

    TC (b48fdd)

  9. So you believe that corporations have more rights that citizens…that makes you a fascist by definition.

    madmatt (75517f)

  10. The assistant devil’s advocate wrote:

    a real “return to sanity” on this issue would be overruling the parts of the buckley and bellotti cases which suggest that corporations have the same right of free speech that people do.

    Why shouldn’t corporations (which are nothing more than associations of people who have come together for a specific purpose) have “the same right of free speech that people do?”

    Why is it that our friends on the left always think that the solution to some problem is to stifle speech?

    Dana (3e4784)

  11. The First Amendment reads:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    What part of “shall make no law” is so difficult to understand?

    Dana (3e4784)

  12. you’re distorting the facts here and missing the point. nobody (at least from what i’ve read) is trying to “ban” the political speech. what they’re debating is whether or not money for those ads should be regulated like campagin ads.

    james (d737be)

  13. If the conservatives are using this court case as their big hope to “move the debate forward” in ’08, then they frankly deserve to lose. You know, maybe it’s time to start playing the game the way the LibDems play it. Use those 527’s. Tap into folks like Howard Rich and Richard Mellon Scaife.

    Do you think the other side even gives a flying fig about the status of McCain-Feingold the way you do?

    Brad S (12c864)

  14. Dana,

    People can be found guilty of breaking the law and be sent to jail.
    When was the last time a corporation went to jail for breaking the law?

    I hope this helps answer why corporation’s shouldn’t have the same rights as people do.

    Robert (f05910)

  15. you’re distorting the facts here and missing the point. nobody (at least from what i’ve read) is trying to “ban” the political speech. what they’re debating is whether or not money for those ads should be regulated like campaign ads.

    I really don’t know where to start with this. So few words, so many errors.

    Political speech, to be effective in a mass society, must be broadcast in some way. This costs money in our system. Therefore speech = money, or at least no money = no speech. Ask any third party candidate.

    To differentiate regulating money for ads and ads themselves is kinda like saying you want to regulate prayers but not churches. Both are wrong, and the difference (whatever it is) is beyond uninteresting.

    EVERY campaign finance law has had ONE sure goal: to make challenges to incumbents harder. Every time there is a serious challenge to the established order (e.g. McCarthy vs Johnson; Perot vs Bush/Clinton) there is a bipartisan call for “reform”. And every time speech loses and the powerful gain. And there’s always useful idiots cheering it on.

    Kevin Murphy (805c5b)

  16. Robert, corporations can’t go to jail because corporations are associations of people — but the people who make up corporations can go to jail.

    Fact is, the very reason you tried to give is why corporations must have freedom of speech — because the corporation can say nothing without a living human being doing the speaking.

    Dana (556f76)

  17. it is, in fact, very difficult and unusual for the people who make up corporations to be sent to jail on behalf of the actions of the corporation. there are vast legal protections for the people who run corporations to protect them from personal responsibility.

    Someone please explain to me how the rationale behind allowing unlimited amounts of money to be poured in in a virtually unregulated fashion would do anything other than guarantee that only the messages of the rich and powerful, and corporations, are heard?

    jimMcmanus (e4840c)

  18. Let me try to approach the scenario this way. The idea of free speech is that each of us has the same volume of voice. Now if 5% can afford to rent bullhorns, doesn’t that impede the free speech of the rest of us?

    I think the analogy holds since the ads work – that’s why they’re willing to throw so much money at them.

    Psyberian (de47c4)


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