A Blow For Democracy Against McCain-Feingold: Gag Rules Struck Down

The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit.

So wrote Justice Kennedy in today's decision striking down the government's ability to stifle speech during an election, ruling against provisions of the 2002 Bipartisan Campaign Reform Act (BCRA).

This decision is kind of a catharsis, having just watched MI-5's 5th Season opener (thank you NetFlix) - where MI-5 Chief Harry Price and his protectors of the realm foil a coup comprised of the press, big oil, and their foreign intelligence counterparts, MI-6, that would have spawned a police state in the UK.

Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.

A "ban on speech, backed by criminal sanctions." It should be astounding that such a fundamental principal, voiced so simply in the First Amendment, could be essentially ignored by McCain-Feingold, enacted in legislation, and take over 8 years to be remedied. Justice Kennedy went on during oral arguments last September to explore if books could be banned based on this legislation - the chilling (and decisive) determination being yes. A book that was transmitted via satellite to a Kindle for example, would fall under the FEC's law and thereby could be banned if published (or distributed) during the 30 day McCain-Feingold window.

Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.


Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.
A reminder that the Constitution affirms mistrust of governmental power, and stands to defend its citizens against its misuse.
The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

In addition to the author's, one should question the supporters of McCain Fiengold (those that still hold office).

Campaign finance accountability is easy - full disclosure of every dime given to every candidate - with criminal penalties for withholding the same. Follow the money if you must - but you may not touch the

speech. Today's decision upholds the disclosure/disclaimer provisions of the bill.

Today's decision, against the channels that would suggest otherwise, should affirm our faith in our institutions. It reminds me of Churchill's oft' repeated saying, "Democracy is the worst form of government, except for all the others."

The full text of today's supreme court decision can be found in PDF here.



Thanx to the Cato Institute for the alert and coverage of last September's oral arguments.


To those who fear that Universal Healthcare is Dead

The following is based on a thread initiated by my friend Birgit, and helped along by my friend Steve. On the issue of Federally funded healthcare I believe we differ. On the issue of quality healthcare delivered effectively and efficiently to the largest population possible - I think we are in complete agreement.

Rather than punt to the Federal government the local issue of health care delivery, why don't we let the citizens of California (Pop 37M), Texas (Pop 24M), NY (Pop 19.5M) , Florida (Pop 18M), Illinois (Pop 12.9) Pennsylvania (Pop 12.4M), etcetera. chose (or not) their own program as has Massachusetts (Pop 6.5M)? For states w/ populations below say 5m, create intra-state medical regions that will operate as do the larger states?

I contend that to compare the United States (303M) to Germany (83M), Switzerland (7.6M), the Netherlands (17M), Australia (21.2M), or Canada (33M) is to miss the importance of scale and jurisdiction. While Uwe Rhinehardt's perspective with respect to community risk and risk equalization describes a standard actuarial model for healthcare funding, it fails to acknowledge the differences in scale between the examples and the United States, and ignores the unique regional implications of the nature of Unites States and the separation of powers between the Federal and State Governments.

Whether you like the plan or not, I think Massachusetts has proven a plan can be enacted and administered at the State level. That said - one should evaluate its current
performance and ask if this is what is wanted for the other states, let alone the nation.

Do we want basic healthcare for all, or a federally mandated and controlled program? In my opinion, one does not imply the other.

For an example of privately managed and quality healthcare, *Kaiser Permanente was born in 1930. Dr. Sydney Garfield seized an opportunity that simplified his back office (billing) and provided full healthcare to thousands of workers on the LA Aqueduct. He wasn't trying to get rich - just deliver high quality healthcare in the most efficient (business and medical) means possible. *Full Disclosure - I was an employee of Kaiser Permanente from 1991-1999

My friends who advocate a universal plan do so from the best of motives. They ask why should we who have "good" jobs be able to afford good health care that preserves our lifestyle - when those who "are not lucky enough" suffer loss of jobs, savings, and homes when struck with debilitating illness or injury? Another post will be required to do justice to this question.

I don't believe quality healthcare can be born out of pure profit motive (capitalist though I be) nor from government coercion. I believe it can only be forged by like minded individuals, organizations, and health care providers, banding together to articulate a shared objective and selling it to the populace that are to be its beneficiaries.

When the healthcare reform debate becomes more about the definition of basic quality care, its effective delivery, and efficient financial structures, we will start to perceive what reform means. As long as the discussion centers on secondary issues (or agendas) - or is politicized (meaning its character is shaped by current political powers) we will be a long way from any healthcare reform - universal or otherwise.

Respectfully yours,