If you went over to a river bank and threw in the biggest rock you could carry, or even if you got help and threw in the biggest rock that you and a group of friends could lift and throw, would you expect the river to stop? Of course not. The water will simply go around the rock and, depending on the size of the river, the rock will have either no noticeable effect or might divert the water on its path downstream.
And yet that is precisely what today’s “Campaign Finance Reform” crusaders believe by their attempts to “get money out of politics”. There is a difference, however, between the rock in the river and the actions of these zealots: The rock causes very little or no harm whereas “Campaign Finance Reform” is a direct attack on one of our most fundamental constitutional rights.
Can you imagine what James Madison would think if he were around to learn that everything from online pornography to almost any TV commercial to intentionally offensive art are far more protected forms of speech than is political speech? It is political speech – especially political speech that is unpopular – that the Founders sought to protect.
Since the passage of the McCain-Feingold law (the signing of which is, I believe, the single greatest failure of George W. Bush’s presidency because he signed it even though he recognized it to be unconstitutional), the forces of liberty have had a few small victories in trying to win back political freedom.
One of these victories, albeit a small one, came on Thursday in a decision by Judge Emmett G. Sullivan of the DC District Court. In the case of Representative Christopher Shays, et al. v. Federal Election Commission, Judge Sullivan ruled that the FEC was not required to make further regulations to apply campaign finance laws to “527 groups”, political “committees” like the anti-Kerry “Swift Boat Veterans for Truth”, the anti-Republican “MoveOn.org”, or the free market “Club for Growth” but that they could rule on a case-by-case basis.
It was a fairly close call and basically won on a technicality: The judge ruled that the standard of review required deference to “the expertise of an agency” even though he did find merit in the plaintiffs’ arguments. He continued: “It is not surprising, therefore, that plaintiffs have been unable to cite any case where a court, absent a clear directive from Congress, required an agency to institute rulemaking in the place of adjudication. This Court will not be the first. Even if the Court believes as a matter of policy that rulemaking is viable for the major purpose test, the Court may not substitute this judgment for the agency’s decision.”
The only reason 527 groups exist was because money found a way around McCain-Feingold, just like river water around a rock. To mix metaphors, 527s remind me of the veritable plague of Cane Toads in Australia…of which there are over 200 million now, killing dogs (when they eat the toads) and spreading disease: An original 102 toads were brought into Australia 70 years ago to control a Cane Beetle outbreak. Now the cure is far worse than the disease. Just as they Aussies might wish they had tried more standard sort of controls, America should allow unfettered political contributions as long as they are accompanied by complete and immediate disclosure. In the Internet Age, there is no excuse for anything else, and the river of money will keep flowing no matter what Congress does.
There have been other political Frankensteins born of McCain-Feingold, but we have killed at least one: In Washington State just 3 months ago, a (surprisingly unanimous) state Supreme Court ruled in the case of San Juan County v. No New Gas Tax that views expressed by radio talk show hosts about a ballot initiative did not count as campaign contributions, in this case to the organization opposing a new gas tax. In a strongly worded concurring opinion, two judges declared “Clearly, ‘the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment’…Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights.”
Another important victory for political speech came in the June ruling by the Supreme Court in Federal Election Commission v. Wisconsin Right to Life, Inc. that parts of McCain-Feingold are unconstitutional. It’s the first big chip in that wall, and it highlighted the importance of whom we choose as President because of the power to nominate Supreme Court Justices: The vote was 5-4, with Justices Alito and Roberts joining Kennedy, Scalia and Thomas in the majority, with both Scalia and Alito suggesting they would be open to revisiting most if not all of McCain-Feingold.
This is the track we need to go down to let James Madison get back to sleep by demanding the return of truly free (political) speech, the fundamental right which, along with Freedom of Religion, he realized most needed protection from the dead hand of government.