December 21, 2006

''The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech."

The Federal Election Commission loses in its effort to enforce the McCain-Feingold law against issue ads that mention the name of a candidate.
Wisconsin Right to Life, an anti-abortion group, has been fighting the law since 2004, when it sought to run an advertisement urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl, both Democrats, and ask them not to hold up President Bush's judicial nominees.

Because Feingold was running for re-election in 2004, the ad was prohibited. Wisconsin Right to Life argued that it wasn't trying to influence an election and said the law restricted its constitutional right to petition the government.

36 comments:

nvittal said...

Yea, right....!!

Revenant said...

Wisconsin Right to Life argued that it wasn't trying to influence an election

What's scary is the idea that trying to influence an election through speech would have been illegal.

Tim said...

"What's scary is the idea that trying to influence an election through speech would have been illegal."

Right on, man!

Anonymous said...

revenant,

C'mon now. They get elected as your representatives, then they get to tell you how much speech you're allowed when it comes time to decide whether they remain in office.

It's like democracy, only better. In fact, it should be illegal to criticize it. Where are you Feingold? We need another law!

Anonymous said...

I also agree with Revenant.

These FEC enforced restrictions on our free speech are absurd. I guest-blogged at the Club for Growth a bit last week, and you wouldn't believe the rules you have to follow for FEC compliance.

Adam said...

The Club for Growth restrictions may have to do with its tax status, not FEC regs, depending on what part of their operations you were involved with.

There's something a bit silly about this, that a court can't use common sense to determine that when an ad is run during election season and talks about a candidate up for election, that regardless of the absence of "magic words", it's probably trying to steer your vote in the election.

auntiegrav said...

" It's like democracy, only better. In fact, it should be illegal to criticize it. Where are you Feingold? We need another law!"
>>>>>>>>>
Tax status. Tax status. Tax status.
Do I need to say it again? The restriction was put into place when the WRTL signed up to get non-profit status.
There is no such thing as non-profit. They all want or get something in exchange for something else. That is what government endorsement is all about, whether incorporating or patenting or marrying people. Quid pro freakin Quo.
The individuals can say whatever they want, and buy commercials from willing media. The bullies (groups) lose their bully status. That's the beauty of the U.S. Constitution: it was totally invented to protect individuals from bullies.

downtownlad said...

What a stupid lawsuit.

We wouldn't have had to have our hard earned tax money fighting this case if we didn't have an imbecile President sign this travesty into law in the first place.

Anonymous said...

auntiegrav,

So an individual is OK, but several of them together becomes a bully. An individual with tons of money can't be a bully, but a group of individuals who want to pool their money to advance some common political belief is a danger against which our government must protect us.

Tim said...

"We wouldn't have had to have our hard earned tax money fighting this case if we didn't have an imbecile President sign this travesty into law in the first place."

And imbecilic Senators and Representatives to write the bills, more imbecilic Senators and Representatives to pass it, and imbecilic Supreme Court justices to rule it constitutional. Add to that the imbecilic interests groups that supported the bill becoming law, and what we have is another interest group filing a lawsuit that another imbecile calls "...a stupid lawsuit."

Seems to me there are too many imbeciles; smarter imbeciles might not be so quick to focus their ire on one man.

Seven Machos said...

Downtown Lad -- Yes. We all agree it's a travesty. And it's beautiful that you have managed to blame Bush, despite the fact that Congress and the Supreme Court are equally guilty. I know you aren't all that much for understanding how government works. The important thing is to blame Bush and Republicans for all badness.

Nevertheless, I am truly surprised that you have failed utterly to work in the gay angle. After all, FEC-enforced restrictions severely curtail the ability of gay PACs and organizations to influence elections. Clearly, when President Bush alone enacted this law that we all agree is a terrible one, he did it to spite homosexuals everywhere.

downtownlad said...

Well Seven - How typical of you to turn an argument on McCain-Feingold into a gay bashing incident.

How very typical.

McCain and Feingold both made very clear their support of this law. They ran on it and were elected on it. I disagree with them, but at least they told us their opinion about it when they were up for election.

Bush on the other hand - lied to the American people by saying he opposed it. He then proceeded to sign it into law.

So yeah - I blame the liar Bush.

downtownlad said...

And it find it shocking that you would blame the Supreme Court.

What did you expect, for them to be "ACTIVIST" and nullify a law that was favored by the Congress, the President, and the American people???

Seven Machos said...

Downtown Law -- Right. The law's name is McCain-Feingold but Bush and the bad, old conservative Republicans are to blame for it. That's comical, dude.

I can see that you are stirred up. I think, however, that your anger is misdirected. Clearly, the principal leader behind this law which we both agree is bad law is Russ Feingold. He swayed McCain to support the bill; his name is on the bill; he is its major architect.

And, as I noted above, Feingold's FEC-enforced restrictions severely curtail the ability of gay PACs and organizations to influence elections.

Without question, Feingold has shown himself to be no friend of the gay community with this heinous anti-gay law.

Revenant said...

DTL,

"Activist courts" does not mean "courts that defy Congress". It means "courts that invent their own law". There's a First Amendment in the Constitution. Courts that enforce it aren't guilty of inventing their own law.

In contrast, neither common law nor the US Constitution has ever recognized, say, a right to do whatever you want with your own body (although it would be nice if there was), or a right to state recognition of whatever marriage arrangements you wish to enter into.

downtownlad said...

Oh Right - the first amendment somehow prevents Congress from regulating donations to political organizations, but the 14th amendments reference to "liberty" is just an inkblot.

Sorry - but either courts can declare the unconstitutionality of a law or they can't. How is the Supreme Court not being activist if they strike down McCain Feingold, but they're being activist if they find a right to pick your nose?

Sorry - but when you try and pin down your judicial philosophy to the mindset of a two-year old, I'm going to call you on it.

Courts have to look at a lot of things when deciding if a law is constitutional or not. Determing the case based on whether or not it is "activist" is quite dumb.

Face it - the court is "activist" if you don't like their ruling and it's not activist if you happen to like it.

How convenient.

cokaygne said...

Sad to see how quickly the comments turn abusive. not meaning to be abusive, but I have a question for auntiegrav: How is this about tax status?

yes, I know that nonprofits could lose their tax exemption if they advocate for a candidate; but this is about a different federal law that limits the right of any group, except the media and we're not sure about bloggers, to advocate for or against a candidate for office

Shanna said...

What's scary is the idea that trying to influence an election through speech would have been illegal.

Yes, and one of the major reasons I became angry at Bush early in his Presidency and one of the major reasons I can never support McCain for any election higher than dogcatcher. Free speech is a big deal and political speech is an even bigger deal.

Simon said...

"Oh Right - the first amendment somehow prevents Congress from regulating donations to political organizations, but the 14th amendments reference to "liberty" is just an inkblot."

It isn't an "inkblot," it's a restatement of a theme that has echoed down the theme since Magna Carta ("No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land"). It appears in several state constitutions in the revolutionary era, including Article VIII of Virginia's Declaration of Rights 1776 ("no man be deprived of his liberty except by the law of the land or the judgement of his peers"), Article VIII of New York's Constitution of 1777 ("no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land") and Article XXI of the Maryland Constitution of 1776 ("no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land"). No one denies that the government cannot deprive you of your life, liberty or property - the question is what those terms mean, and I think their meaning is quite apparent in context. These are not terms that the framers invented - if you are reading the Constitution ignorant of its common-law background, you are reading a novel written in a language you do not comprehend.

It is a limitation on arbitrary government violence against the population -- written in a time where they had just broken from a former colonial master which had "abolish[ed] the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies." It speaks to a restraint on government's power to execute, imprison or fine except by the due process of law - not some nebulous restraint on what kind of laws may be passed by democratic assent. Substantive due process is not only illogical, atextual and a misbegotten of Dred Scott, but worse yet, profoundly ahistorical. I don't see how anyone familiar with the concerns that animated the time in which the Fifth and Fourteenth Amendments could seriously maintain that they were understood to be free license for the courts to strike down whatever legislation struck their fancy.

OT: I'm waiting until the 7th Circuit posts the opinion before commenting.

Adam said...

Ann, when did this website get so stoopid? Wow. And here I was eager to discuss the actual legal stuff.

downtownlad said...

Oh right - and when the founders passed the First Amendment, they meant that to mean that people have a right to donate a billion dollars to a political action committee.

"Speech" is not the same as "the right to donate an unlimited amount of money to a political action committee".

Political Action Committee's didn't even exist in 1776, so how the hell could the first amendment apply to that?

The fact is that if you want the Supreme Court to strike down this law, you would have to take a very broad view of the first amendment, one that has zero basis in precedent by the way.

Not that I'm against such an action. I would favor it. But then again, I'm not the one who screams about an "activist" court and then has the audacity to scream when the court is NOT "activist" (such as this case as well as Kelo by the way).

Glenn Howes said...

I might be misremembering this, but my impression was that Bush had promised during his first campaign to sign something called "Campaign Finance Reform" and when it came up, he signed it. I was dissappointed in his actions, but I think he did make the promise.

Also, I can't see how anyone can hold McCain faultless on this, his signature issue, especially when it came out after the fact that he had been running an astroturf campaign to fool his fellow Senators into thinking there was a big public upswell of support for the bill. The man has a certain ethical flexibility.

downtownlad said...

No Glenn - Bush lied to the American people about this. He was quite adamant about his opposite to McCain-Feingold. He signed the law, because he thought he could punt this popular item to the Supreme Court who he thought would strike it down. Bad move.

As someone who was flirting with Bush and McCain in the Republican primaries in 2000, I decided to back Bush and campaign finance was the deciding issue.

So sorry - he mislead me and he mislead his supporters. I was not one to be fooled though and my opinion of him instantly sank. It's also why I voted Libertarian in 2004.

Just one list of many that will have Bush go down as the worst President in the history of the United States.

And that is not an exaggeration. Many conservative scholars believe the same thing.

Abraham said...

Political Action Committee's didn't even exist in 1776, so how the hell could the first amendment apply to that?

What would you call the Sons of Liberty, if it wasn't a "political action committee?" I somehow doubt that the framers were unfamiliar with the concept of a group organizing for the purposes of political advocacy.

In any case, when did you become such an originalist? What a ridiculous argument that is! Why not try these on for size:
"The Internet didn't even exist in 1776, so how the hell could the first amendment apply to that?"
"High-speed presses didn't even exist in 1776, so how the hell could the first amendment apply to that?"
"Telephones didn't even exist in 1776, so how the hell could the fourth amendment apply to that?"
"Homosexual rights didn't even exist in 1868, so how the hell could the fourteenth amendment apply to that?"

downtownlad said...

I'm not an originalist, so why should I even try and answer your questions?

I have a very broad view of the Constitution - one that should be striving for liberty and limited government. Themes on which our country was founded and areas that will evolve over time as we gain more knowledge and becomes more civilized.

In that sense, I'm being very consistent when I say that the government has no right to prohibit political campagin and ads and the government has no right to dictate that a guy can't get a blowjob from his wife.

Now how people can say they are conservative, but then think it's perfectly ok for the government to pass a law that would make it illegal to pick your nose in the privacy of your own house is beyond me. But they do - they think that's a perfectly constitutional law.

Sick.

ShadyCharacter said...

I've enjoyed the comment section on this blog a lot more since I started applying the "first last" rule to DTL's posts. To get the gist of DTL's argument, just read the first and last word of his post. It doesn't always make sense, but then you've saved yourself a cup o' bile...

Sigivald said...

Downtown: Paying someone to speak and lobby for you is speech, in every relevant way.

(Just as spending the money directly to buy a printing press, hire people to operate it, and distribute it is. We call that a "newspaper", and those existed in the 1780s, did they not? "The press" being explicitly mentioned in the First Amendment, after all.)

McCain-Feingold is one more reason to never, ever vote for John McCain.

Simon said...

downtownlad said...
"Political Action Committee's didn't even exist in 1776, so how the hell could the first amendment apply to that?"

I'd add to Abraham's list that infra red surveillance devices didn't exist in 1791, but the Fourth Amendment still applies to them. See Kyllo v. United States, 533 U.S. 27 (2001). The meaning of the Constitution may not change, but its application does. The core protection of the First Amendment, in my view, is the restraint on government from restricting political speech. Whatever else it may mean, that's the core of it, and BCRA by definition impedes political speech. The First Amendment is not a codification of a natural law right to speak one's mind -- it is a prohibition on government from preventing speech, not a guarantee that your voice will be heard or that your voice will be equally loud as anyone else's.

"I'm not an originalist, so why should I even try and answer your questions?

Because you made an originalist argument. You appealed to the original meaning of the First Amendment: if PACs didn't exist in 1791, how on Earth could the framers have understood it to apply to something that didn't yet exist? This is something I've never understood about non-originalists: if the original meaning is worthless, why do you fall back on it when it happens to suits you? Is the original meaning authoritative, or isn't it? It's exactly the same with foreign law - if it's authoritative in Roper, why wasn't it in Hudson?

In at least one regard, though, I totally agree with you. The worst problem with Bush's signing BCRA was that he signed a piece of legislation that he had said he believed to be unconstitutional. That is an impeachment-worthy offense for a President, in my view, although obviously one unlikely to lead to impeachment procedings.


"Now how people can say they are conservative, but then think it's perfectly ok for the government to pass a law that would make it illegal to pick your nose in the privacy of your own house is beyond me. But they do - they think that's a pefectly constitutional law."

From my perspective, that question is meaningless. It procedes from the premise that my answer about what the Constitution DOES say should procede from my evaluation of what it SHOULD say; that if I believe that it's unacceptable that government should be able to ban picking your nose, ergo, I must believe it's unconstitutional, because anything that is stupid, or immoral, or political unacceptable, must also be unconstitutional. And I say "piffle." That isn't how I see the Constitution. I reject the premise of the question.

The Constitution permits government to do many things that I don't approve of, politically. You know, I don't like that the Constitution permits states to have legal abortion, but it still does so. I don't see what is so hard about grasping that one can look at the Constitution in a way that is not normative: I don't look to the Constitution and think "what can I do with this," I ask "what does it say." If it says you can't do something, the normative question of whether you should is irrelevant; if it says government can do something, then you have the political debate about whether it should ban picking your nose, or smoking, or whatever liberal fad is in this week.

The difference between legal liberals and legal conservatives (not necessarily the same thing as political liberals and political conservatives) would appear to be that legal conservatives don't want to resolve every single political dispute at the level of the Constitution. We see the Constitution as primarily structural. In the normal course of events, I want government to exercise as limited a portion of its power as is prudent, but that doesn't mean that I think that restraint has to be written into the Constitution against future generations.

downtownlad said...

If the originalists are so sure that McCain Feingold was unconstitutional based on the first amendment's original intent - perhaps they'd like to explain why blasphemy was illegal in 1789.

Congress can ban blasphemy, but they can't regulate political donations?

Give me a break.

If "originalism" is so important - then can we please abolish the Air Force, because the Constitution doesn't allow for it.

Simon said...

Sigivald said...
"McCain-Feingold is one more reason to never, ever vote for John McCain.

Unless, of course, he's the GOP nominee in 2008. In which case, a candidate who is bad on the First Amendment is still better than a candidate who is bad on the Constitution itself. I don't envisage supporting McCain in the primaries, but if he's the nominee, he'll have my full (albeit reluctant) support.

I'm learning pragmatism from Ann. ;)

downtownlad said...

And any holistic reading of the Constitution makes it quite apparent that the framers didn't think the Congress should be able to do much. If you look at the 1st, 9th, 10th, and 14th amendments - that's a pretty decisive statement that the government has ZERO right to pass a law that is not in the public's interest.

Passing a law that bans the picking of your nose in your private residence doesn't pass the test. It is so obviously unconstitutional it's funny that people are even disagreeing with that.

Anonymous said...

dtl-there was no federal law concerning blasphemy in 1789 nor has the US Congess ever entertained such to my knowledge. There were such State laws, some as a result of original colony actions. When such were challenged, federal courts struck them down on constitutional grounds. That's how a Republic used to work. Incidently, the US Air force is a spin-off of the US Army. How is it not constitutional?

downtownlad said...

But surely when they wrote the First Amendment, they didn't mean to include blasphemy laws? I mean - why else would have they have kept the blasphemy laws on the books if they really meant for the First Amendment to abolish it?

These are the same bogus arguments used against sodomy laws. "Well, they were on the books in 1865, so surely the 14th amendment didn't mean to abolish them, etc., etc., etc."

Also, the Constitution says that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States."

It doesn't give the President any authority whatsoever to be Commander in Chief of the Air Force. None. Zippo. And surely that wasn't the original intent - since the Air Force didn't exist.

Thus, according to originalism - the Air Force is illegal. And you need a Constitutional Amendment to make it legal.

I think originalism is bullshit. I'm more of a textualist and you have to make some effort to apply the Constitution to the world we live in now, not the world of 1789.

Daryl Herbert said...

What's scary is the idea that trying to influence an election through speech would have been illegal.

Yep.

We wouldn't have had to have our hard earned tax money fighting this case if we didn't have an imbecile President sign this travesty into law in the first place.

Yep.

Why is it okay for a steel CEO to buy an ad using his own money, but if 1000 of his workers want to pool their money and buy some ads, they're a dangerous undemocratic force acting against the body politic and without Constitutional protections?

It seems to me the Constitutional rights of 1,000 people should have more weight than the Constitutional rights of 1.

Anonymous said...

And it seems to me that the constitutional rights of 1 person should be no less, or more, than the constitutional rights of 1,000 people. Equality before the law, unless you are, say, George Soros, and want to spend $15,000,000 to defeat someone you don't like. Then it is ok, because you can afford to spend a few million in lawyers fees to help pretend you are complying with the law.

Seven Machos said...

And any holistic reading of the Constitution makes it quite apparent that the framers didn't think the Congress should be able to do much.

This may be the wrongest, most uninformed thing I have ever read.