Eminent Domain

I wasn't surprised to read this editorial this morning in the Milwaukee Journal-Sentinel about campaign finance laws. The Supreme Court case in question is Wisconsin Right to Life v Federal Election Commission, which I have talked about here. I think that the McCain-Feingold law is an unconstitutional restriction on free speech and should be struck down by the Court. Unfortunately, the make up of the Court has not changed enough since McConnell v FEC to let that happen.

Let's take a look at the editorial...

The court mustn't weaken the one limited tool Congress has come up with recently to regulate campaign spending and to help ensure clean elections.

This makes me laugh every time I read it. Clean elections?! Yeah, the 2004 election is the model of decency and fairness. Those Swift Boat Vets and MoveOn.orgs seemed to find a way around the law and get their ads on TV. I'm sure both sides would dispute the claim of "cleanliness" in those advertisements. It's also odd that the "no vote fraud" editorial board is so concerned about clean elections now...

That means the court should rule in favor of the Federal Election Commission and against Wisconsin Right to Life, a non-profit organization, which is arguing that it was lobbying, not electioneering, when it ran broadcast ads in 2004 that mentioned the name of U.S. Sen. Russ Feingold, the Wisconsin Democrat and one of the law's namesakes, who was running for re-election. Other organizations that engage in politics - even groups that back a woman's right to choose an abortion - are siding with Wisconsin Right to Life on this issue.

Wait a minute... you mean that a group of citizens has raised money, pooled it, and decided to buy commercial airtime to engage in speech? The bastards. We can't allow anyone to criticize Russ. That would be horrible. We wouldn't want the voters to know about his actual record on the issues. The voters might actually make an informed decision then. Those other organizations agree with Wisconsin Right to Life because they don't want their speech to be shut out either.

Were the ads merely a lobbying tool, then they could run during the blackout periods prescribed by McCain-Feingold. An organization is barred from using funds from its general treasury to air commercials naming candidates during the 30 days before a primary election and the 60 days before a general election.

Lobbying, good. Open discourse during an election season, bad.

McCain-Feingold sought, among other purposes, to plug a hole that allowed organizations to evade campaign law by running ads that pretended to deal with issues, not candidates. Instead of outright urging viewers to vote against an elected official, they would urge viewers to call that official and express how they felt on a particular issue. The viewers got the point. Were the court to rule in favor of Right to Life, these sham issue ads would make a comeback.

Oh this is good. An ad criticizing Sens. Feingold and Kohl urging them to oppose a filibuster of the president's judicial nominees is a "sham issue". I don't know. That sort of strikes me as an "issue". I guess it's a sham to inform the voters of Wisconsin what their senators are actually doing.

McCain-Feingold does permit third-party ads during the blackout period but by political action committees. Right to Life does have a PAC, but it lacked the funds to run the commercials in question, the organization argues.

So the law allows the ads sometimes and from some sources but not others. This points out the stupidity of the law. The same speech is fine if you pay for it from a different account and run it at a different time.

The closing...

Yes, McCain-Feingold does restrict speech, but there is a balancing act required here. A democracy demands clean and transparent electioneering.

Yes, it does restrict speech. I guess we've not forgotten about this totally...

Congress shall make no law... abridging the freedom of speech...

That thorny language seems to get in the way, doesn't it? How exactly is the election "clean" by not having this ad on the air? It's not. This law is a tool of incumbent politicians to keep motivated citizens from criticizing them. That 90-some% re-election rate isn't enough for them. They want to stop as much criticism of them from reaching the voters as possible. I can't wait until there are five votes on the Court to strike down this law.

My previous McCain-Feingold posts are here , here, and here. I really don't like this law.