McCain-Feingold Revisited
Just how far will SCOTUS go in undoing McCain-Feingold? Mickey Kaus speculates:
Rick Hasen worries that the Supreme Court appears ready to strike down, on free speech grounds, a large chunk of the McCain-Feingold campaign finance law–the part that bans corporate funding of election season broadcast ads. Amazingly, Justice Kennedy is not the swing vote on this issue, Hasen notes. He’s already come out with Scalia and Thomas against the law. He’s a done deal. Roberts and Alito– they’re the swing votes! Yikes. Add them to the previous three and you would have a sure majority of 5 even if Obama had nominated Dahlia Lithwick to fill Souter’s seat.
Hasen predicts a near nuclear disaster for the goo-goo campaign finance lobby: SCOTUS will nix the whole decades-long attempt to keep corporate and union money out of campaign ads–in effect declaring that it’s OK if for-profit corporations and unions use their unlimited funds to run spots attacking specific candidates.
I’m not so sure.
After all, isn’t there a pretty obvious “right” answer in these cases–at least an answer that all concerned civic-minded centrists should approve. It’s this: restrict ads funded by for-profit corporations. Allow ads funded by non-profit “ideological” corporations (and regular, unincorporated individuals–even the Wylys).
The original McCain-Feingold bill, remember, banned only for-profits. There was a good reason for drawing that line: It’s one thing to stop GM,say, from using the millions in profits it generates as a limited liability corporation** to meddle in electoral politics.*** It’s another thing to ban political speech by non-profit groups like Sierra Club and the NRA–organizations whose purpose is to let individual citizens meddle in politics exactly as we should want citizens to meddle in politics.
It was the late, beloved and deeply misguided Sen. Paul Wellstone who broadened the original McCain-Feingold ban to include those non-profit advocacy groups. Wellstone successfully tapped into Congressional incumbents’ natural desire to block any potentially damaging ad from any source they don’t control. McCain and Feingold both voted against Wellstone’s change to their bill. (“If I thought it was constitutional, I would have voted for it,” said McCain at the time.) The New York Times ed board commanded that “The Senate must undo Mr. Wellstone’s damaging amendment.” But the Senate for some reason did not obey. The amendment stood un-undone.
Yet now the Supreme Court can undo it, no? That wouldn’t be hard. They’d just have to embrace and apply the so-called “MCFL exception”–named after a small nonprofit corporation, Massachusetts Citizens for Life, that the Court seemingly said could distribute pro-life propaganda without limiting the size of the individual donations it accepted, as long as it didn’t take for profit corporate money or union money.
And why isn’t that exactly what the Court will hold in the fall when it takes up the issue (after punting on it yesterday)? One answer is that the litigant currently before the Court–a non-profit outfit that made an anti-Hillary movie– has admitted it actually takes for-profit corporate money. They’ve put themselves on the wrong side of the for profit/non-profit line (perhaps intentionally). If you buy the idea that Roberts and Alito really don’t want to uphold any campaign finance laws, then you’d think they would have teed up a different case if they wanted to draw a profit/nonprofit funding distinction. Roberts and Alito don’t want to have to say that, “Hey, McCain Feingold is OK as applied to this anti-Hillary group because of its tainted ‘for profit’ donations, but ….” Which leads to Hasen’s speculation that what they’re really going to say is that McCain Feingold isn’t OK as applied to anybody–non-profit, for-profit, whatever.
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July 2nd, 2009 at 10:59 am
Ya I’ve seen how political vs corporate speech has been separated into two different entities. I’ve always thought it was kind of a dangerous idea though.
It would be better to overturn the entire thing even if it did introduce a butch of corporate lobbying into the mix, which is a problem of course.
July 2nd, 2009 at 11:47 am
Why is political involvement by any group of citizens a “problem?” Should politics be a monopoly of career politicians?
July 2nd, 2009 at 12:31 pm
Well banks argued for the creation of a national bank several times and got it. Lockheed Martin has stopped making airplanes for the private market entirely, and now it only deals with government contracts last I heard so it gets most of its money by lobbying and donating to campaigns to get contracts.
So you can somewhat see what motivates to limit that type of speech.
July 2nd, 2009 at 4:36 pm
Too true not to pass along (
via Instapundit)
WHY ISN’T AMERICA HIRING? “America isn’t hiring precisely because of government policy. Small business owners, who are usually the first into and the first out of the job pool, are standing by the fence and watching. They are paralyzed by regulatory uncertainty. If they hire someone who ends up doing poorly, will they be able to fire that person? Will they have to pay their health care bills after they’ve been terminated? If so, for how long? Who will pay for all these stimulus checks? If it will turn out to be small business, why would they hire instead of keeping costs low to prepare for the big tax bill? Where will the market move? Are you in the right business or are your clients in a politically disfavored industry? . . . Jobs aren’t languishing despite the government’s best efforts. They’re languishing because of them.” Read the whole thing.
Employment numbers certainly aren’t living up to Obama’s “stimulus” promises.
July 2nd, 2009 at 5:52 pm
Good article on Medina campaign
July 2nd, 2009 at 6:17 pm
Obama delays torture report AGAIN.
I doubt it’s really the “holy grail” report as some have said, but after 3 or so delays, I’m getting more curious.
July 2nd, 2009 at 9:41 pm
The only solution to the problem we have with the immoral, unethical, and criminal elections we have is to disband the entire system. We need to arrest most of the existing government including our fraudulent president, Senators, Members of Congress, and the entire bureaucracy. After that is completed, we can impose the Constitution of the United States as a model for our government. Perhaps the step after that is to make screen potential voters for intelligence and awareness of the issues before they are allowed to vote. Dead people should not be allowed to vote, and stupid people and illegal aliens shouldn’t be allowed to vote either. Also, maybe we should keep lawyers from running for office and limit the terms of all elected officials and bureaucrats. I don’t know, but trying to right the wrongs of McCain-Feingold will prove insufficient for improving American elections.