Friday, January 22, 2010

Freedom on the Roll

My political blogging since the fall has been light- in part because of my increasingly busy schedule and in part because of the political dead end that seemed to be approaching in regards to liberty. As the autumn progressed into winter, health care reform seemed all but inevitable and the vote before Christmas time seemed to cement our commitment to some form of legislative monstrosity in the health care sector.

But with the new year has come new blessings of liberty, slight changes in direction that have moved our nation once again in the direction of freedom. It started innocuously enough with Republican Scott Brown's unexpected and somewhat ironic victory in the Massachusetts special election for Ted Kennedy's Senate seat. The victory restored the Republican's power to filibuster and by all accounts has signaled the end of this wave of health care reform as there would be no way to reconcile the House and Senate bills without getting it through the Senate once again.

And there was more good news this week as well, as the Supreme Court finally announced it's decision in Citizens United, overturning restrictive aspects of McCain-Feingold campaign finance legislation on free speech grounds. I'm not linking to anything yet because the story is currently plastered all over every newspaper and news site and I haven't had a chance to read the opinion yet, which is supposedly 180 some odd pages. I'd like to be able to provide some legal reaction in the blog, but again, that will have to wait until I read the full opinion. What I'm most interested in at this point is the reaction to the decision from the left, which has been a mix of confusion and apocalyptic prophecies of corporate control of the political process.

I do plan on a number of follow up posts on the issue, but I did want to take a moment to briefly address these reactions to the decision. What the case was about, specifically, was Hillary the Movie, a anti-Hillary Clinton documentary put together by a conservative non-profit. The FEC blocked the release of the movie on theater screens and through cable on-demand services, leading to the litigation which eventually reached the Supreme Court. The threatening regulation was an aspect of McCain-Feingold that prohibited corporations (including non-profits) from electioneering communications within 60 days of an election. The Supreme Court decision with based on the simple notion that speech is speech and that this sort of political speech is precisely what the First Amendment was written to protect. Taking a different tact, the dissent questioned this protection of "corporate speech" and questioned where in the Constitution that such corporate rights were protected.

As I said, the negative reaction has fallen mostly into two camps, one of which is made of those who never really understood the issue in the first place. To those folks I have only this to say: This decision leaves limits on direct campaign contributions intact. Individuals are still limited in what they can give to candidates and corporations are still barred from donating to political campaigns. The issue before the Court was about speech made independent of particular candidates, or "uncoordinated expenditures" in the vernacular of campaign finance reform. What was at issue was the ability of corporations- and in reality, any organizations to speak out on candidates and campaign issues.

That second camp of negative reaction has focussed mostly on the corporate right of speech. And I'll have more to say on this in coming days, but as a practical matter, I think this focus distorts the broad scope of the law in question.

Take a typical election where two candidates from the major parties are vying for one elected office. Say one party's candidate is the incumbent who has managed to raise double, triple, or even quadruple the amount of his amount. In the months leading up to the election, the big money candidate is able to bombard the tv and radio airwaves with campaign commercials, while his opponent is limited by a more restrictive budget. The supporters of the small money candidate, both corporate interests and individuals, would be severely restricted in terms of what they could do in terms of supporting their candidates under the old laws because of the restrictive nature of McCain-Feingold's ban on electioneering. Non-profits may have a vested interest in the support or opposition of various candidates, but under the old law, they were forbidden from weighing in publicly in the same forum as candidates. Take for example non-profits that support abortion rights, or alternatively the right to life. Such non-profits could have a strong interest in the outcome of an election, but under the old law, they were legally prevented from speaking out.

To this line of reasoning, some folks may answer, "ah ha, so why not just ban corporate spending and allow other, non-corporate groups their right to free speech?" The problem is, that's not a practical solution. If non-profits were allowed to to speak out and corporations were not, corporations could simply funnel money into non-profits for the purpose of speaking out on campaign issues, destroying any rationale for such a distinction in the first place. However you try to work it, you can't limit what corporations spend in speaking out on elections without necessarily limiting the ability of non-corporate groups to speak.


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