Sunday, March 29, 2009

McCain-Feingold: Court Test for the New Royalty’s Right to Censor

From its conception, the McCain-Feingold campaign-finance law was an assault on the First Amendment. Signing that unconstitutional bill into law, knowing it to be unconstitutional, was one of the worst moments of George W. Bush’s presidency. Yet this malignancy lurks in the legal code, widely accepted, even celebrated. Now Deputy Solicitor General Malcolm Stewart has gone before the Supreme Court arguing that McCain-Feingold gives the government the right to ban books and films…A Clear Danger to Free Speech, The Editors, National Review, 3/27/2009

As any gossip knows, once you introduce poison into a living system, it’s very hard to get it out. And McCain-Feingold, what was claimed to be political reform has poisoned the relations between the governors and the governed. An issue settled at the Constitutional convention more than two centuries back must now be re-argued because our political elite feel that their lifetime employment in the Senate and House is threatened by critics taking note of their behavior. The law is an embarrassing and transparent attack on the liberty of any organized critique of anyone running for national ofice, the legal foundation for a New Royalty which, like the one thrown out of the US in the 18th century, will not be required to bear the burden of democratic debate.

This is the second time that McCain-Feingold’s law has appeared before the Supreme Court. Limited in a split decision several years back, it has come back again for testing on its executors’ rights to suppress political speech by organizations expressly designed to exploit the first amendment rights of American citizens. It’s not hard to comprehend why this law was a fusion of thinking on both sides of the aisle in Washington. Nothing so offends princes and princesses as a citizen’s insistence on an alternative point of view; and these New Royals are found in quantity in the District of Columbia.

The First Amendment was intended to protect political speech, the right to advocate causes and criticize government officials, and McCain-Feingold holds that organizations incorporated for the express purpose of engaging in political speech are to be burdened with special restrictions. Put another way, a stripper pole-dancing in Vegas has more robust First Amendment protections under current practice than does a political-advocacy group organized as a nonprofit corporation…(Threat to Free Speech, National Review…(cont’d))

Hasn’t that been the whole drift of judicial action on the first amendment for decades? More and more rights of free expression are extended to the baring of skin and the shouting of expletives, while, between the consolidation of the news business (financially and politically), the divergence of political opinion has been practically erased. The fierce debate on state vs. private development of the economy is a never-ending struggle, and has been for more than a century, but, as the current administration demands wider and wider areas to bring under state control, where but on blogs and one or two financial papers do you find any but positive discussion of what’s being done? The struggle between a state that wants to suppress all public display of religious faith and a constitution that guarantees free exercise of religion is relentlessly falling on the side of the state, but where besides the Internet can you find any discussion of the consequences of a completely secularized society?

Introduced in the Senate and the House is a bill that would bail out financially troubled newspapers, including enormous chains like Gannett. There’s an extension of the limitation of speech in that rescue. Papers and chains which accepted the money could no longer endorse political candidates, a further guarantee for lifetime employment for US Representatives and Senators. And the exemption in McCain-Feingold for newspapers, if the Court decides in favor of the government, might well be thrown aside, yielding an effective silencing on all political debate in organized media, a situation not familiar in America, but very recognizable in the old USSR and its successor under the dictator Putin.

Practically every media business and book publisher of any consequence is a corporation under the law. A Supreme Court decision in favor of McCain-Feingold threatens the free-speech rights of most of the organized enterprises engaged in political debate…The big companies can hire lawyers and figure out ways to comply. Ordinary small groups of citizens end up silenced….(Threat to Free Speech, National Review…(cont’d))

Rather like socialized medicine, where institutions are rewarded, doctors restricted and patients have to wait on line….

Like any other generation in American history, this one has to confront powerful institutions and interests whose management doesn't want us a voice in the proceedings.. The most important way to face down power is the free press and its guarantor, the first amendment. That’s why Senators McCain and Feingold wrote this law. They know what weapons their opponents will use. Watch out for efforts to extend this to the Internet next under the tainted banners of "fairness" or "reform".


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