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.

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