It's speech, dammit!
Concerning the Federal Elections Commission's possible attempt over the next few months, these observations:
1. The FEC is not the source of the problem. It's doing only what all three branches of government agreed it should do:
-- Congressional do-gooders, since Watergate, have succeeded in enacting restrictions on free speech in the interest of preventing actual corruption or the appearance of corruption. Aside from violating the First Amendment, these laws have been spectaculary unsuccessful. That's why they have to keep "refining" the campaign laws every few years.
-- These laws have had the unintended side effect of protecting incumbents by preventing challengers from being able to raise enough money to campaign effectively. So congressional life-timers now have a vested interest in seeing the do-gooders succeed.
-- In perhaps the worst decision of his first term, President Bush declined to veto the latest incarnation of free speech regulation, the Bipartisan Campaign Reform Act, aka McCain-Feingold. Bush voiced misgivings, and it was widely reported that he expected BCRA, or most of it, to be ruled unconstitutional by the Supreme Court. Most Americans who were paying attention expected the same.
-- The Supreme Court blessed BCRA without reservation. I haven't read the opinion, about 300 pages, but the syllabus includes phrases like: “Because [corporate PACS] may still organize and administer segregated funds [for electioneering communications], the provision is a regulation of, not a ban on, expression."; and “Unlike restrictions on campaign expenditures, contribution limits ‘entail only a marginal restriction upon the contributor’s ability to engage in free communication.’” The internal quote is from the Court's 1976 landmark anti-free speech opinion, Buckley v. Vallejo.
2. Conservatives, and a few liberals, often accuse the justices of making it up as they go along: "Hey, lookee here, in the shadow of the Fifth Amendment, there's a right to privacy in here!" In the case of campaign regulation, it's actually worse. The First Amendment has the most unambiguous English declarative statement imaginable: "Congress shall make no law ... abridging the freedom of speech." Is BCRA a law? Yes. Did Congress make it? Yes. Does it abridge the freedom of speech? In the Supreme Court's own words, Yes! And it's political speech, which the First Amendment was written to protect!
3. The FEC's extension of campaign regulation to blogs and the Internet at large is not the Battle of Concord and Lexington. It's Yorktown, and free speech advocates are the British in this analogy. If the FEC, acting on orders from Congress and the courts, regulates Internet speech, then there will be damn little free speech left in this country. It would essentially be reserved for newspaper, radio and television editors.
4. If you want to stop Internet speech regulation, it can't be done at the FEC. It has to be done first in Congress, and then in the courts. President Bush, who thought BCRA was unconstitutional in the first place, should ask Congress to repeal it.
5. As to the courts, their First Amendment jurisprudence has been atrocious. Porn? Check. Flag-burning? Whatever. Vote against John Doe? NOT. All we can do is shrug. The judges have lifetime tenure, after all, and Congress is afraid to use its impeachment powers. It also has the power to remove subjects from the Court's jurisdiction. That power is less-well-exercised than impeachment.
So. You want to protect your freedom of speech? Forget the FEC and go after your Congressman.
And sign the petition at right asking for congressional hearings on judicial activism. When it comes to free speech, the enemy wears black.
Recommended links:
Ace
Captain's Quarters (Ed writes his Senator)
Michelle Malkin
Patrick Ruffini
Wizbang
Sardonic Views
Pennywit gets it.
The Anchoress
Interocitor
Pundit Guy
Professor Bainbridge will switch from Politics to Potter, and I don't mean Stewart.
Outside the Beltway
Atrios, a link I thought I'd never see.
Richard Hasen says the question is whether "regulation of Internet-based political speech serves the goals of the campaign finance laws." An even broader question is whether the BCRA serves the goals of the First Amendment.
Protein Wisdom is my favorite blog, but I don't get to link often because of the subject matter here. And because of the subject matter there, frankly! But at least Martha's free.
UPDATE: Michelle Malkin spreads the word that McCain & Feingold claim BCRA has no designs on blogs. I ain't buyin' it. If the courts allow Congress to regulate speech, Congress will regulate speech. Update 3/11: She also has a letter to sign.
Wizbang's take: Trust us!
Yeah Right Whatever joins the insurrection.
Blue State Conservatives are willing to wait, see and report how this turns out.
UPDATE: Lame play on words in the preceding paragraph has been deleted, if you're wondering why the Blue State Conservative is seeing red in the comments.
UPDATE 3/11: Captain Ed seems unconvinced by the cooing reassurances of Mssrs. McCain & Feingold.
1. The FEC is not the source of the problem. It's doing only what all three branches of government agreed it should do:
-- Congressional do-gooders, since Watergate, have succeeded in enacting restrictions on free speech in the interest of preventing actual corruption or the appearance of corruption. Aside from violating the First Amendment, these laws have been spectaculary unsuccessful. That's why they have to keep "refining" the campaign laws every few years.
-- These laws have had the unintended side effect of protecting incumbents by preventing challengers from being able to raise enough money to campaign effectively. So congressional life-timers now have a vested interest in seeing the do-gooders succeed.
-- In perhaps the worst decision of his first term, President Bush declined to veto the latest incarnation of free speech regulation, the Bipartisan Campaign Reform Act, aka McCain-Feingold. Bush voiced misgivings, and it was widely reported that he expected BCRA, or most of it, to be ruled unconstitutional by the Supreme Court. Most Americans who were paying attention expected the same.
-- The Supreme Court blessed BCRA without reservation. I haven't read the opinion, about 300 pages, but the syllabus includes phrases like: “Because [corporate PACS] may still organize and administer segregated funds [for electioneering communications], the provision is a regulation of, not a ban on, expression."; and “Unlike restrictions on campaign expenditures, contribution limits ‘entail only a marginal restriction upon the contributor’s ability to engage in free communication.’” The internal quote is from the Court's 1976 landmark anti-free speech opinion, Buckley v. Vallejo.
2. Conservatives, and a few liberals, often accuse the justices of making it up as they go along: "Hey, lookee here, in the shadow of the Fifth Amendment, there's a right to privacy in here!" In the case of campaign regulation, it's actually worse. The First Amendment has the most unambiguous English declarative statement imaginable: "Congress shall make no law ... abridging the freedom of speech." Is BCRA a law? Yes. Did Congress make it? Yes. Does it abridge the freedom of speech? In the Supreme Court's own words, Yes! And it's political speech, which the First Amendment was written to protect!
3. The FEC's extension of campaign regulation to blogs and the Internet at large is not the Battle of Concord and Lexington. It's Yorktown, and free speech advocates are the British in this analogy. If the FEC, acting on orders from Congress and the courts, regulates Internet speech, then there will be damn little free speech left in this country. It would essentially be reserved for newspaper, radio and television editors.
4. If you want to stop Internet speech regulation, it can't be done at the FEC. It has to be done first in Congress, and then in the courts. President Bush, who thought BCRA was unconstitutional in the first place, should ask Congress to repeal it.
5. As to the courts, their First Amendment jurisprudence has been atrocious. Porn? Check. Flag-burning? Whatever. Vote against John Doe? NOT. All we can do is shrug. The judges have lifetime tenure, after all, and Congress is afraid to use its impeachment powers. It also has the power to remove subjects from the Court's jurisdiction. That power is less-well-exercised than impeachment.
So. You want to protect your freedom of speech? Forget the FEC and go after your Congressman.
And sign the petition at right asking for congressional hearings on judicial activism. When it comes to free speech, the enemy wears black.
Recommended links:
Ace
Captain's Quarters (Ed writes his Senator)
Michelle Malkin
Patrick Ruffini
Wizbang
Sardonic Views
Pennywit gets it.
The Anchoress
Interocitor
Pundit Guy
Professor Bainbridge will switch from Politics to Potter, and I don't mean Stewart.
Outside the Beltway
Atrios, a link I thought I'd never see.
Richard Hasen says the question is whether "regulation of Internet-based political speech serves the goals of the campaign finance laws." An even broader question is whether the BCRA serves the goals of the First Amendment.
Protein Wisdom is my favorite blog, but I don't get to link often because of the subject matter here. And because of the subject matter there, frankly! But at least Martha's free.
UPDATE: Michelle Malkin spreads the word that McCain & Feingold claim BCRA has no designs on blogs. I ain't buyin' it. If the courts allow Congress to regulate speech, Congress will regulate speech. Update 3/11: She also has a letter to sign.
Wizbang's take: Trust us!
Yeah Right Whatever joins the insurrection.
Blue State Conservatives are willing to wait, see and report how this turns out.
UPDATE: Lame play on words in the preceding paragraph has been deleted, if you're wondering why the Blue State Conservative is seeing red in the comments.
UPDATE 3/11: Captain Ed seems unconvinced by the cooing reassurances of Mssrs. McCain & Feingold.
posted by Karl Maher at 8:16 AM
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