A Stitch in Haste

To review, campaign finance jurisprudence, from Buckley v. Valeo, 424 U.S. 1 (1976), all the through McConnell v. FEC, 540 U.S. 93 (2003), are collectively on my list of the Ten Worst Supreme Court Cases. The court has crafted a schizophrenic interpretation of the First Amendment — which in this context should need no interpretation. Of all the categories of speech that were intended to be protected, and ought to be protected, by the First Amendment, political speech surely ranks at the top of the list. It should be absolutely sacrosanct.

Nevertheless, the Court has contorted and rationalized its way into an incomprehensible and indefensible set of rules, and rationalizations for Congress' rules, limiting free speech in politics. Most notably among these is of course the Bipartisan Campaign Reform Act of 2002, a/k/a "McCain-Feingold."

For example, according to the Supreme Court, Michael Bloomberg's money is "speech" but mine isn't (i.e., he can spend $70 million getting re-elected but I cannot spend one-tenth of one percent of that to oppose him).

That simply cannot be right.

Perhaps the only aspect of McCain-Feingold (and the Court's defense of it) worse than this insolent "money may or may not be speech" gobbledygook is the idea that the First Amendment can apply on some days of the calendar but not others:

"Electioneering communications," under the 2002 law, are ads that corporations and labor unions (including many non-profit corporations) pay for out of their own treasury funds, when the ads run in an area where a federal candidate is on the ballot (everywhere, for presidential candidates), use that candidate's name, and appear within 30 days before a primary election and 60 days before a general election — the "blackout" period. As of now, that period, at least for the presidential campaign, is to start next December, 30 days in advance of the Iowa caucuses.

A "blackout period" is just another term for censorship. That's how far into the abyss we have sunk: Unapologetic censorship of political speech is deemed, by Congress and the Court, as consistent with the First Amendment — as long as it's "just sometimes."

That simply cannot be right.

The Supreme Court now has an opportunity to climb up from the muck of McCain-Feingold and dismantle its loopy campaign ad jurisprudence. It is hearing oral arguments today in a case, Federal Election Commission v. Wisconsin Right to Life (06-969), that presents an as-applied challenge to the blackout period.

Unfortunately, and as is so often the case with Supreme Court litigation, there are complicating issues (in this instance, "mootness") that may result in the Court not even addressing the underlying substantive question. Hopefully that will not be the outcome. Hopefully the (reconstituted) Court will issue a mea culpa and strike down the blackout period, and perhaps all of McCain-Feingold and — wishful thinking — all the Court's embarrassing campaign finance detritus.

Again: It is preposterous — un-American — to suggest that the Bill of Rights applies in November but not December. With each new campaign finance case the Court humiliates itself even further.

It's time to cut through the Gordian knot and bring some sanity back to this process.

More thoughts from Senator Mitch McConnell (as in "McConnell v. FEC") (WSJ-$)

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One footnote:

In 2003, Sandra Day O'Connor joined the four liberal justices in upholding large portions of McCain-Feingold law. She has since retired and her replacement, Justice Samuel Alito, is considered more conservative.

Good outcomes or bad, I'm not particularly looking forward to these "reconstituted Court" cases. They sully the Court's reputation one way or the other.