Anti-Sedition Act At Risk on New Supreme Court

Via Committee for Justice, the Wall Street Journal reports (sub. required; the article is however reprinted in whole at the Committee for Justice link) Bush Picks May Tip Court Against McCain-Feingold. This is reason to go on living if you like the First Amendment at all. Says the Journal:

Campaign-finance cases have revealed a philosophical split on the court, with more conservative justices, such as Antonin Scalia, considering political expenditures the functional equivalent of speech, and thus beyond state restriction. More liberal justices, such as Stephen Breyer, have viewed such regulations as lawful means to fight political corruption and keep moneyed interests from drowning out other voices.

One of the political cases challenges a provision of the McCain-Feingold law that prohibits corporations from direct expenditures on electioneering within 60 days of an election. The case involves one of the act’s authors, Sen. Russell Feingold (D., Wis.), who, while seeking re-election last year, was targeted by Wisconsin Right to Life with ads about his position on President Bush’s judicial nominees.

Rick Hasen, an election-law expert at Loyola Law School in Los Angeles, says a second Bush appointee could shift the court’s balance on McCain-Feingold. Republican appointees, he says, have been “much less willing to uphold campaign-finance laws and willing to find more laws that violate the First Amendment.”

God bless the honorable court that overturns this dishonorable, cynical legislation.

UPDATE: I was wrong. The Supreme Court didn’t. Not exactly. But… this:

As predicted at the time by me and others, the ban prompted a stampede of donors away from the national parties and toward independent, outside special interest groups that were far less accountable and transparent.

Just between the enactment of BCRA and 2008, there was more than a 1,000 percent growth in independent group spending at the national level. This spending ultimately filtered down to the states, including New Jersey.

Immediately upon enactment of BCRA, a lawsuit challenged its constitutionality. Senator Mitch McConnell and a variety of interest groups targeted the soft money ban and the advertising blackout periods before elections.

A ruling by the D.C. District Court upheld most of BCRA but struck down the soft money ban. The U.S. Supreme Court took up the case, rendering an opinion on December 10, 2003.

In its ruling, the Supreme Court upheld as constitutional most of BCRA, including the soft money ban, the 30- and 60-day blackout periods, and the ban on corporate and union independent expenditures.

What came next, however, demonstrated that despite the McConnell decision, BCRA was far from settled law. . . .

Other rulings further chipped away at BCRA, such as Davis v. FEC (2008). In this case, BCRA’s millionaire’s amendment allowing congressional candidates opposed by self-financed candidates to triple their contribution limits was struck down by the high court . . .

The situation truly reached critical mass in the Court’s Citizens United v. FEC ruling on January 10, 2010.

The 5-4 majority overturned as unconstitutional Austin v. Michigan Chamber of Commerce (1990), which had banned corporate and union independent expenditures. Austin was a departure from the landmark Buckley v. Valeo (1976) decision.

In Citizens United, the Court determined that the 30-day and 60-day blackout periods on express advocacy were unconstitutional hinderances to free speech.

Thus, the Supreme Court in Citizens United all but eviscerated McCain/Feingold. It did sustain the ban on direct contributions to candidates and political parties by corporations and unions, and strongly endorsed the disclosure of campaign advertisements even if they went beyond the functional equivalent of express advocacy.

The unintended consequence of McCain/Feingold was to light the match that sparked the growth of independent spending often was done with no donor disclosure. 

Originally posted 2005-09-28 17:23:25. Republished by Blog Post Promoter

Ron Coleman

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