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December 11, 2003

Striking Down The First Amendment
When a Supreme Court majority opinion opens in this fashion, you know the Constitution is about to be tossed aside:

More than a century ago the "sober-minded Elihu Root" advocated legislation that would prohibit political contributions by corporations in order to prevent "the great aggregations of wealth, from using their corporate funds, directly or indirectly," to elect legislators who would "vote for their protection and the advancement of their interests as against those of the public." In Root's opinion, such legislation would "strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government." The Congress of the United States has repeatedly enacted legislation endorsing Root's judgment.

BCRA [Bipartisan Campaign Reform Act] is the most recent federal enactment designed "to purge national politics of what was conceived to be the pernicious influence of 'big money' campaign contributions."

What the legal definition of "big money" is, Justice Stevens--writing for the majority--doesn't say. But it sure sounds evil, doesn't it?

What about the pernicious influence of little money? There are few things more annoying than having to endure someone jingling their pocket change.

But I digress.

Disguised as campaign finance reform, the BCRA (a.k.a. McCain-Feingold) is a modern-day version of the Sedition Act of 1798. Its goal is to minimize criticism of federal officeholders by regulating the content, timing and funding of political advertising on radio and television.

For example, McCain-Feingold prohibits any person or group not covered by federal election laws from mentioning a federal candidate's name in radio and tv ads within 60 days of a general election.

In upholding this and other glaringly unconstitutional provisions of McCain-Feingold, Justices Stevens, O'Connor, Souter, Ginsburg and Breyer base their ruling on the opinions on Elihu Root, former justices, former presidents, and zillions of other statues and precedents. They also resort to using vague phrases such as "soft money", "electioneering speech", "sham issue advocacy" and "electioneering communication".

But--and this is key--the five justices never refute the claim of McCain-Feingold critics that the act restricts free speech. Instead, the majority poo-poos free speech concerns by saying the plaintiffs "conceive of political corruption too narrowly" and that McCain-Feingold is a "modest" statute that has "only a marginal impact on political speech."

In other words, the Supreme Court has ruled that if Congress is corrupt enough, then Congress is allowed to violate the freedom of speech--but only a little bit!!

The First Amendment of the Constitution is precise:

Congress shall make no law ... abridging the freedom of speech ....


There's no way around this prohibition on Congress--except to ignore it. That's why Stevens, O'Connor, Souter, Ginsburg and Breyer ramble for about 165-pages in a futile attempt to argue that adherence to the Constitution is predicated upon the prevalence of political corruption.

But let's not reserve all the criticism in this matter for the Supreme Court. The blame for this century's Sedition Act falls squarely onto every member of Congress who voted for it and the president who signed it into law. Shame on them.

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