McCain and Feingold Sitting in a Tree, C-h-o-k-i-n-g

Even as the Supreme Court signals a readiness to roll back still further the Bipartisan Campaign Reform Act's restrictions on political speech, the law's famous backers, Sens. John McCain and Russ Feingold, are threatening to take their ball and go home if President Obama doesn't stack the Federal Election Commission with McCain-Feingold enthusiasts. From Politico:

Feingold (D-Wis.) and McCain (R-Ariz.) have placed a hold on the FEC nomination of Democratic labor lawyer John Sullivan, POLITICO confirmed Tuesday. […]

In a statement issued in response to POLITICO's inquiries, the lawmakers signaled they would release the hold only if Obama taps two additional nominees to fill expired seats on the six-member independent panel, which critics contend is systematically deregulating campaign rules.

"The FEC is currently mired in anti-enforcement gridlock," read the joint statement from Feingold and McCain…. "The President must nominate new commissioners with a demonstrated commitment to the existence and enforcement of the campaign finance laws."

Over at the website of the pro-speech Center for Competitive Politics, CCP Chairman and former FEC head honcho Bradley Smith responds:

This vindictive move by McCain and Feingold is akin to announcing they won't vote to confirm Judge Sonia Sotomayor to the Supreme Court unless Justices Antonin Scalia and Clarence Thomas are replaced, too. FEC Republicans, including apparent hold target Don McGahn, are faithfully exercising their duties in light of legitimate concerns about their constitutional and statutory authority, not simply bulldozing ahead with burdensome campaign finance regulation despite Supreme Court rulings rolling back portions of McCain-Feingold and the reach of campaign finance restrictions as a whole.

This move by Sens. McCain and Feingold is congressional meddling with the independence of the FEC at its worst. Demanding the President appoint FEC commissioners who will toe your pro-regulatory line despite clear Supreme Court precedent isn't 'reform,' it's the last gasp in an effort to defend failed government speech controls on Americans' First Amendment rights.

Smith wrote about "John McCain's War on Political Speech" for Reason in 2005, was interviewed in 2001 and 2003, and sat down with Reason.tv last year:

Comments

[Peter]

McCain needs a punch in the cock. So does that other guy who isn't nantionally famous.

[Tulpa]

Feingold was the only Senator to vote against the PATRIOT Act. So that's something.

[Warty]

Yo, fuck the Honorable Sens. McCain and Feingold.

[bubba]

Congressional meddling was teh WHOLE POINT of McCain-Feingold.

[J sub D]

The McCain Feingold Campaign Finance Reform Incumbent Protection Act ensured I wqould not vote for the fuckwad for president.

Y'know who else regulated political speech?

An Austrian corporal and failed painter.

Too soon for a Godwin?

[Peter]

Hitler would say it's never too soon for a Godwin.

[Tulpa]

J sub D Godwins the thread.

[R C Dean]

As I see it, McCain-Feingold can only be defended on two grounds:

(1) The First Amendment protection of speech extends only to protecting the content of speech, and not the distribution of it. Speech, in short, is limited to your unaided voice.

This is what the argument that "money isn't speech" boils down to. Once you say that the First Amendment protects the distribution of speech, then I don't see any way to avoid the conclusion that spending money to distribute your speech is a protected activity.

(2) The First Amendment protection of speech can be overridden by other concerns. This, of course, is the real ground for M-F. Unfortunately, the First Amendment doesn't admit of any such limitation, and so there is no guidance whatsoever as to what these overriding concerns can be. At the end of that road is a First Amendment that is subject to the whims of the government (read to include the judicial branch).

[Rich]

Oh, I'd say it's probably *not* "the last gasp". 8-(

[Mike]

Money is not speech and corporations should not have first amendment (or other constitutional) rights. If America is to have a government of the people, by the people and for the people, it must let the people rule, not the corporations or concentrated wealth.

[Tulpa]

The First Amendment protection of speech extends only to protecting the content of speech, and not the distribution of it. Speech, in short, is limited to your unaided voice.

even that might be too loose a limitation, as water is needed to keep from getting a sore throat, and that costs money.

[JB]

McCain hates free speech. Fucking loser.

[libertymike]

R C, that is why legal positivism is for the the two wolves and a sheep deciding what's for lunch crowd who think that value represents the apogee of human development.

[Pendulum]

RC Dean

"2) The First Amendment protection of speech can be overridden by other concerns."

This is the better response, and it's a fairly uncontroversial one. The First Amendment seems to, by its text, extend freedom of speech to libel and slander, but nonetheless we support libel laws. Most people also support some limits on freedom of speech when it could create a panic or directly incite a crime.

So, we readily grant that the 1A doesn't provide absolute, total, free speech, despite it's plain text. When vital social interests are at stake, reasonable limits may be imposed. It's not too much of a stretch to argue that equality in the electoral process is an important enough interest that some restrictions on free speech may be appropriate - for example, no campaign literature within 100 feet of a voting location. That said, from what I know of McCain-Feingold, its regulations are far too sweeping to justify its restrictions. But merely saying "First Amendment - no abridgment of any free speech, ever! Read the text!" isn't good enough.

(The First Amendment also by its plain meaning allows states to abridge free speech all they want, but that's another story entirely.)

[Pendulum]

And Feingold has good taste in music, too. He likes Wilco. Much love, Russ.

[R C Dean]

The First Amendment seems to, by its text, extend freedom of speech to libel and slander, but nonetheless we support libel laws.

Libel and slander laws only allow a defendant to prove and collect damages. Just as your free speech rights are not infringed when a published charges you to run an ad, your free speech rights are not infringed when you pay for the damage the exercise of that right has caused.

So, we readily grant that the 1A doesn't provide absolute, total, free speech, despite it's plain text.

Not so fast. I don't read the text to mean that you don't have to pay your advertising bill or pay for the damage you cause by running your yap.

When vital social interests are at stake, reasonable limits may be imposed.

And that's the slippery slope that leads to all of our rights being balanced away.

But merely saying "First Amendment - no abridgment of any free speech, ever! Read the text!" isn't good enough.

Tell it to the Founders. On balance, I think it is a much better position than "Your free speech rights are subject to whatever the State says are 'vital social interests'". Right now in Venezuela, Chavez is saying that closing down opposition TV stations is a vital social interest.

The First Amendment also by its plain meaning allows states to abridge free speech all they want,

Good thing the Fourteenth applies it to the states, isn't it?

[libertymike]

R C, the natural rights man! Yeah! Hey, your 2:58 response is not that of a legal positivist.

[tomwright]

Since no one else has mentioned it, let me:
Cool headline. It even matches in meter.

Very clever Matt. Golf clap.

[MJ]

"Money is not speech and corporations should not have first amendment (or other constitutional) rights."-Mike

How exactly is it justified that people who invest in corporations give up their constitutional rights when it come sto their investment? That's all a corporation essentially is, a legal entity serving as an umbrella for a group of people working for common goal, stereotypically a business endeavor (but not necessarily). Where in the Constitution is the "concentration of wealth" exception to the free speech clause? For the life of me, I cannot find any such thing in the text.