McCain-Feingold's Lessons in Free Speech

For the first time in many years a sliver of optimism has peeked through the dark cloud of free speech suppression and political oppression brought to us courtesy of Sen. John McCain (R.-Ariz.) these past five years.

The US Supreme Court in a majority opinion delivered on Monday by Chief Justice John Roberts disallowed the application of the McCain-Feingold law to a series of television ads run by Wisconsin Right to Life (“WRTL”) that audaciously called upon Wisconsin citizens to call their United States Senators (including Sen. Russ Feingold (D.-Wis.)) about filibustering against President Bush’s judicial nominees.

The exciting thought struck long time observers of this issue that maybe — just maybe — it might be that the Supreme Court was in the process of restoring the protections of the First Amendment to ordinary citizens and not just journalists, nude dancers and mushroom growers.

The editorial and headline writers at the New York Times and Washington Post and their wannabes in liberal newsrooms across the nation are in full swoon from their corporate perches wringing their collective hands as they spew forth their concerns about the ‘corruption’ caused by corporations other than their own corporate media companies expressing political views….…including corporations like the not-for-profit WRTL organization and similar citizens groups.  According to the New York Times  and the ‘reform’ cabal whose views are regularly parroted from the Times’ corporate platform, the only corporation that should be allowed to speak freely on candidates, policies, issues, legislation and the like should be those in the news media business…like, for instance, the New York Times.

Three justices of the Supreme Court (Justices Scalia, Thomas and Kennedy) would have permanently invalidated the section of McCain-Feingold considered by the Court – but settled for agreeing with Justices Roberts and Alito to invalidate the section as it applied to WRTL’s communications in this particular case.  Justices Alito and Roberts were not prepared to go so far as to declare the offensive section unconstitutional on its face.  For the time being, Chief Justice Roberts rounded up enough votes to play Goldilocks…finding the ‘just right’ porridge of facts before the Court to abolish the absolute prohibition against radio-tv ads referencing or depicting a federal officeholder/candidate on any topic in the days before an election.

Writing for the majority, Chief Justice Roberts said “…Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Justice Souter’s dissent recited in mind-numbing detail the role of corporations and the huge amount of money there is in politics…which always inflames the liberals….who love to talk about hating money…as they are awash in it and spare no expense spending liberal billionaires’ and other people’s money to influence politics their way, through forced union dues, government funding of nonprofit groups like ACORN, nongovernmental organizations, government employees, and on and on.  

The reliably liberal faction of the Supreme Court (Justices Souter, Ginsberg, Stevens and Breyer) unsurprisingly stuck together to support in a separate case handed down the same day the right to ‘free expression’ by a teenager to unfurl a blasphemous and unsavory banner supporting illegal drug use as the Olympic torch passed by his school.  These justices apparently find no inconsistency in their would-be denial of First Amendment rights for the Founding Fathers’ intended purpose of protecting political expression by citizens about their government and elected officials, which was the issue in the WRTL case, but relying on the First Amendment to promote an ‘anything goes’ speech of a rebellious teenager. 

The Federal Election Commission and its enforcement lawyers would do well to read – and re-read – the case it lost on Monday.  And to re-think its recent aggressive expansion of the Commission’s definitions of “express advocacy” and the agency’s apparent belief that any communications that reference candidates, officeholders, issues or government policies are subject to the agency’s jurisdiction, control and regulation.   The Supreme Court wrote on Monday, “Given the standard … adopted for determining whether an ad is the ‘functional equivalent’ of express advocacy, contextual factors … should seldom play a significant role in the inquiry. Courts need not ignore basic background information that  may be necessary to put an ad in context — such as whether an ad ‘describes a legislative issue that is either currently the subject of legislative scrutiny or likely to be the subject of such scrutiny in the near future,’– but the need to consider such background should not become an excuse for discovery or a  broader inquiry of the sort we have just noted raises First Amendment concerns.” 

The Supreme Court is essentially sending a message to the FEC that it does not have unbridled authority to examine every aspect of the inner workings of any group who dares to wade into America’s political and policy waters.  The First Amendment actually does still protect citizens from the kind of invasive discovery tactics that have become routine at the FEC. 

Sen. McCain (R.-Ariz.) issued a statement calling the Supreme Court’s decision “regrettable”, fearing no doubt that the ruling could well result in tv and radio ads castigating him for his efforts on a myriad of issues he is promoting that conservatives find wholly distasteful.

He isn’t alone.  Sen. Trent Lott (R.-Miss.) lamented last week the undue influence of conservative radio talk show hosts in opposing the Senate’s proposed immigration legislation…authored by…(who else?) Sen. John McCain.  Sen. Diane Feinstein (D.-Calif.) then opined that perhaps the ‘fairness doctrine’ should be reinstated to mute the voices of conservative radio talk show hosts, but, more specifically, their pesky conservative listeners.  There is a pattern here.  Senators seeking to silence citizens and critics, commentators and active opposition.

The central purpose of the First Amendment was to protect the people from the government.  People like United States Senators and House members and government agencies.  Not the other way around.

Too many Senators tend to think the First Amendment exists to protect them from the people. But the Supreme Court reminded us on Monday that the original purpose was not and is not obsolete.Reinforcing that principle is a huge step forward and not something that real conservatives find ‘regrettable’.