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Wisconsin Right to Life vs. FEC

This is the case, recently heard by the Supreme Court, that may place some First Amendment limits on McCain-Feingold's speech-suppression laws. The amicus brief in which the Independence Institute participated is here. A collection of other briefs and documents is here. It is a good test case because the advertisement in question (urging Wisconsin citizens to tell Senator Feingold stop supporting the filibusters of Bush-nominated judges) was plainly a communication about the business of Congress, rather than a thinly-disguised campaign advertisement (e.g., "Tell Senator Snort that you're upset that he was arrested for domestic violence 10 years ago.") Yet the advertisement was claimed to be illegal by the FEC because it was aired within 60 days of the general election.

Adam B. (www):
Plainly? It's not quite that easy, David. The ads only ran after filibuster votes had occurred, when the Senate had departed for a six-week recess. No judicial filibuster votes occurred during the rest of 2004. Moreover, while the ad said "contact Sen. Feingold," etc., it contained no contact information.
5.2.2007 7:49pm
Viscus (mail) (www):
Kopel wrote:

"McCain-Feingold's speech-suppression"

but I am sure he meant:

"McCain-Feingold's politician-buying-supression"

It's funny how easy it is for some people to equate expenditures of money with speech. Is this what the founder's intended when they wrote the First Amendment or what the states intended when they ratified it? I don't think so.

But, alas, how easily is originalism warped in the hands of libertarians. (Remember Lochner?) Roe v. Wade is supposedly Constitutional law run-amok. But "creative" interpretations that advance libertarians ideals? What could possibly be more legitimate.

Whatever. Unlike with conservatives, I do not expect more from libertarians than hypocrisy, so I cannot say I am either surprised or disappointed. Happily, with the advent of the Internet and decentralized communication and TiVo, issue ads matter less and less. Thus, happily, the ability of outside interests to buy politicians has likewise decreased and will only decrease more in the future.

I suppose if I were a libertarian I would be torn. On the one hand, I might celebrate the decentralization of communication that the Internet allows. On the other, large corporations and other lobbying groups will have a harder time buying politicians to advance a "free market" agenda as the importance and influence of money (a libertarian would say "speech") decreases. How torn libertarians must be!
5.2.2007 8:26pm
Jim FSU 1L (mail):
What are you even talking about Viscus? Your incoherent rant makes sense only as anti-libertarian flamebait.

Are you trying to argue that the right to lifers were motivated by a desire to secure some sort of economically favorable regulation?
5.2.2007 9:24pm
Brian K (mail):
I second what Adam B. said.

If anything is plain, it is that this was an attempt to influence the election NOT an attempt to influence day-to-day business of Congress. There were no judicial nominations occurring during that timefrime and there is no reason why they couldn't have waited until after the elections to air the commercials.
5.2.2007 9:30pm
HLSbertarian (mail):

If anything is plain, it is that this was an attempt to influence the election NOT an attempt to influence day-to-day business of Congress.


I know there's legal basis for the distinction, but don't we feel just a little silly saying "This was an attempt to influence an election, and because of that it shouldn't be protected"?
5.2.2007 10:01pm
Mac (mail):
If anything is plain, it is that this was an attempt to influence the election NOT an attempt to influence day-to-day business of Congress.

Gosh, here I am finding out that I am wrong thinking that myself and other citizens have a Constitutional right to speak up and influence elections. George and Thomas must be cheering from their graves, eh?

Viscus,

You left out a few "special interest" folks, like George Soros who, because of this law can donate millions to one candidate (like he did for Kerry), and the Environmentalists who are very vocal and well financed, not to mention Labor Unions, the NEA and so on.
5.2.2007 10:10pm
Adam B. (www):
That said, I want to be clear: I agree with WRtL in this case, because I don't think a contextual test, that goes beyond the four corners of the ad, is tenable in a situation like this where quick judicial decisions may need to be made.
5.2.2007 10:20pm
David in NY (mail):
I guess I don't see why having to wait 60 days to make "a communication about the business of Congress," or make it 60 days before the election, is such a big First Amendment deal. Time place and manner and all that. If all they wanted to do was to communicate with Sen. Feingold, they could write him a letter.
5.2.2007 10:23pm
TJIT (mail):
I believe the proper terminology is McCain-Feingold incumbent protection act.

Viscus apparently supports free political speech as long as nobody else can hear it.

McCain-Feingold was an astroturfed set up job driven by those who feared free speech without gatekeepers.

From Volokh we have this post Charged with promoting campaign-finance reform when he joined Pew in the mid-1990s, Treglia came up with a three-pronged strategy: 1) pursue an expansive agenda through incremental reforms, 2) pay for a handful of "experts" all over the country with foundation money and 3) create fake business, minority and religious groups to pound the table for reform.

And from opinion journal we have Mr. Treglia admits that campaign-finance supporters had to try to hoodwink Congress because "they had lost legitimacy inside Washington because they didn't have a constituency that would punish Congress if they didn't vote for reform."

If Bush is going to be impeached for something he ought to be impeached for signing this unconstitutional piece of excrement.
5.2.2007 10:37pm
Viscus (mail) (www):
Mac,

I didn't make a list of particular interests, either from the left or the right. Given that, I don't see why you think I "left out" any on a list I didn't make in the first place.


I am wrong thinking that myself and other citizens have a Constitutional right to speak up and influence elections. (bold added).


That right to speak is not what you are defending. What you are defending the right to spend, spend, spend and spend some more! What you are defending is the privilege of those in a position to spend more and more money over those who are not in such a position to wield special influence on elected officials that theoretically are supposed to represent everyone, rather than just the privileged few.
5.2.2007 10:43pm
Viscus (mail) (www):

Viscus apparently supports free political speech as long as nobody else can hear it.


You apparently only support the "free" speech of those who have money.
5.2.2007 10:46pm
MatthewM (mail):
Viscus, if there was a "paper control" law stating that newspapers would not have the right to print anything about a candidate 60 days prior to the election, would you defend it based on the fact that this isn't regulating speech or the press, only paper? Look, money is simply one of the physical consructs upon which speech rests, just like printing presses, videotape, servers, and all the other things used to convey ideas. Regulating those physical items with the intent to destroy or suppress the speech which they support is censorship, pure and simple, just as "paper control" would be.
5.2.2007 10:51pm
Brian K (mail):
In response to the people who responded to me:

From this short posting, it appears that WI right to life is basing its defense on the fact that the commercial a communication about the business of Congress and had nothing to do with the election. There are legitimate 1st amendment claims against the McCain-Feingold act, but from this short blurb it does not appear that they are making those. In any case, if I remember correctly, the courts have already dealt with many of those claims.

In order for WI right to life to claim this was a communication about the business of Congress, shouldn't current congressional business include judicial confirmation proceedings? That means the commercials should have aired early in 2004 or after the elections in 2005 since, as noted above, there were no judicial nominations during the 60 day run-up to the election. What reason besides attempting to influence the election could WI right to life had for airing the commercials specifically at that time?
5.2.2007 10:58pm
David M. Nieporent (www):
I want to second what HLSbertarian said: it's a rather perverse misinterpretation of the first amendment to think that attempting to influence an election is a bad thing. That's the core of what the first amendment was intended to protect.
5.2.2007 11:45pm
ShelbyC:
Viscus,

So there'd be no 1st amendment problem if Congress outlawed spending money to advocate the election of, say, Democrats? Or to advocate against tax increases?
5.3.2007 1:13am
Brian K (mail):
Shelby,

How does this law only affect republicans? how does this law regulate content?
5.3.2007 1:21am
dubious (mail):
Kopel's post says:
Yet the advertisement was claimed to be illegal by the FEC because it was aired within 60 days of the general election.

Isn't that untrue, or at least very misleading? This ad was a problem because it was funded by contributions from a business corporation. The issue is restrictions on electioneering use of corporate (and union) general treasury money; it isn't as if no person or entity is allowed to air ads, even electioneering ones, within 60 days of an election. I may be wrong; I'll be glad to be corrected if so.
5.3.2007 2:25am
arbitraryaardvark (mail) (www):
Moreover, while the ad said "contact Sen. Feingold," etc., it contained no contact information.
It's my understanding that the ad pointed to a website,and the website extensively listed Feingold's contact information. Seems a reasonable way to do it.
Kopel's post says:
Yet the advertisement was claimed to be illegal by the FEC because it was aired within 60 days of the general election.
Isn't that untrue, or at least very misleading?

I think what Kopel is saying is that the ad would have been legal, even to the FEC, if aired earlier than 60 days, so his remark is true. Whether it is misleading is more of judgment call - how complete does a statement have to be to not be misleading? As you say, part of the setup of the case is the ads include corporate funding, so that WRtL can invoke the Bellotti precedent, that said that corporate issue speech is protected by the First Amendment.
I suspect that the only reason the ads were shown was to set up a test case. (I could be wrong.) I don't know how the court feels about such cases. The cost of the ads was less than the legal fees which will be generated by the litigation.
5.3.2007 9:11am
TJIT (mail):
Viscus,

I support free speech.

You apparently support only free speech you or your favorite gate keepers approve of.

In other words you oppose free speech.

Cheers,

TJIT
5.3.2007 10:23am
Adam B. (www):
A.A.: But the website *also* contained language, according to some reports (IIRC), that came much closer to explicit electioneering. WRtL has strenuously argued that the website and other contextual clues *shouldn't* be included or incorporated into the analysis of the ad.

dubious: correct
5.3.2007 10:45am
AppSocRes (mail):
Is it really so hard to understand that freedom of speech is a dead issue in this country when legal quibbles and administrative and judicial fiats are all that determine whether or not individuals and organizations can communicate political and philosophical ideas.
5.3.2007 12:40pm