Score One for Free Speech
The demise of the Bipartisan Campaign Reform Act (a/k/a McCain-Feingold) is cause for celebration. Flimsily justified as a means of preventing corruption, McCain-Feingold gave established media outlets a near monopoly on political speech in advance of elections – precisely when such speech is most likely to persuade. The law constituted the most odious and cynical use of government censorship to protect incumbent elected officials.
As its title suggests, the law was passed in bipartisan fashion (an excellent example of the limited value of bipartisanship) and was signed into law by President Bush. It represented in my opinion the worst decision of his presidency as he simply kicked the constitutional can down the road, leaving it for the courts to decide. All branches of government, however, have an equal responsibility to safeguard the Bill of Rights. McCain-Feingold represented the best and an entirely sufficient reason to oppose McCain’s presidential bid (unfortunately counter-balanced by even more compelling reasons to oppose Obama’s).
The Supreme Court has finally reached the right conclusion, years later and with the barest majority. A good synopsis of the ruling can be found here. Justice Kennedy’s controlling opinion says many of the right things. For example:
[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.
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The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
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Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”
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The First Amendment’s protections do not depend on the “financial ability to engage in public discussion.”
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When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.
On the other hand, the opinion does not go far enough. Justice Thomas provided the lone voice in pointing out the increasing dangers of disclosure requirements in the Internet age. Donors are discovered immediately and targeted by opponents. As experience proves in the wake of California’s Proposition 8, taking sides can cost you your job, your business, and your physical safety. Thomas concludes:
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’”
Precisely, just as I (as a lawyer) have to think seriously about the consequences of contributing to a judicial candidate. Do I really want to be on the list of contributors to a candidate running against a judge who will decide my case? Disclosure is a sure recipe for the kind of corruption McCain-Feingold claimed to prevent – a roadmap for favors and retaliation.
Count on the established media and the politicians favored by the established media to mount a concerted effort to reclaim their favored position by equally unconstitutional means.
