The Spreading Menace of McCain-Feingoldby Thomas Mitchell
There is one law Congress, in all its collective wisdom, can never repeal: the law of unintended consequences.
In a fit of pique over the huge sums it was costing them to successfully defend their coveted seats of power, Congress passed the McCain-Feingold law, setting limits on what people could spend -- and when -- exercising what had once been their free speech right to advocate candidates for federal office.
Of course, before the ink was dry on the parchment, along came the 527s -- MoveOn.org, billionaire George Soros' America Coming Together and the lightly funded but ever so nettlesome Swift Boat vets -- to make a mockery of the whole concept.
Now it is the denizens of the Internet whose ox is being threatened with a thorough goring. In 2002, a federal judge determined that the Federal Election Commission's decision not to apply the law to Internet bloggers and their online ilk was wrong.
Judge Colleen Kollar-Kotelly, in her order to the FEC to change its rules to enforce campaign finance laws on the Internet, wrote, "To permit an entire class of political communications to be completely unregulated irrespective of the level of coordination between the communication's publisher and a political party or federal candidate, would permit an evasion of campaign finance laws."
A class of political communications being unregulated? Now, just how does that concept come anywhere close to comporting with the First Amendment stricture against Congress making laws abridging free speech and press?
It does not, of course...
If the folks on the Internet can be prohibited from expressing their political views about a candidate or linking off their own Web pages to a campaign's Web postings, what is the difference between that and telling a newspaper that its editorial endorsement of a candidate is an in-kind contribution that must be reported to the FEC and cannot appear in the 60 days before an election?
That won't happen yet, because the major media outlets managed to wrangle an exemption for our reporting and commentary no matter how one-sided or biased some of it might be. You, on the other hand, have no lobbyists protecting your constitutional rights, whether it is on the Internet, on the street corner, in the corner pub or your own home. Your speech is now officially, by law, abridged.
Nevada's own Sen. Harry Reid is coming to the aid of bloggers everywhere, promising to press legislation that would exempt the Internet from campaign finance law.
In an e-mail being reported by the online news outlet CNET Networks, Reid is quoted as writing, "Regulation of the Internet at this time would blunt its tremendous potential, discourage broad political involvement in our nation and diminish our representative democracy. We should avoid silencing this new and important form of political speech."
But it is perfectly OK to diminish our representative democracy by limiting an older form of speech -- specifically newspaper and television advertisements purchased just prior to Election Day? That does not silence or blunt any important forms of political speech, right?
Writing in dissent of a 2003 U.S. Supreme Court ruling that upheld McCain-Feingold as constitutional, Justice Antonin Scalia warned, "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."
Also in dissent, Justice Clarence Thomas asked what would "stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy 'circumvention' of the limitations of the current campaign finance laws?" How prescient. That is precisely what Judge Kollar-Kotelly said.
I've said it before and will continue to do so: McCain-Feingold is clearly, fundamentally unconstitutional. And if we can't get the courts to declare it as such, we must demand that our elected representatives come to their senses and repeal it immediately. Or elect those who will. Does that violate McCain-Feingold?
http://www.friendsofliberty.com/modules.php?name=News&file=article&sid=2345.
