Brad Smith on John McCain:

Capital University law prof, former FEC Commissioner, and Romney supporter Brad Smith has this to say about why so few conservative law professors have jumped on the McCain bandwagon:

I think that conservative law professors, who as I say, probably care more about the issue of judges and are on average in a better position to consider the candidates on this particular issue than are most other conservative activists, don't like what they see in McCain. Some of it is the problem of McCain-Feingold. McCain is likely to make support for McCain-Feingold - an issue he has said is "of transcendent importance" to him - a litmus test for judges. It is very hard, however, to find judicial candidates who think McCain-Feingold is constitutional yet who are also are anti-Roe v. Wade and generally respectful of the Constitution. For anyone with a coherent judicial philosophy of federalism and limited government, the two just don't go together. When McCain says he wants to appoint justices like Thomas and Scalia, we must consider that Thomas and Scalia would overrule all of McCain-Feingold, indeed all pre-existing campaign finance law except perhaps some disclosure. It is almost impossible to believe that Senator McCain would appoint Thomas or Scalia to the bench, let alone the Supreme Court.

Of course, there was a time when conservatives were significantly less sympathetic to a broad interpretation of the the First Amendment than were liberals. Perhaps President McCain will regress conservatives to the historical mean.

Senator McCain said some promising things during the Bork and Souter confirmation hearings (before CFR was a hot thing, admittedly). I'm surprised such statements have not been circulated more frequently.

New York Times, October 6, 1987.

"One should remember that, if our courts are free to go beyond the terms of our cherished Constitution to create new constitutional mandates that some might find acceptable, the Supreme Court in later years could use that free-roaming power to create mandates we don't like. Neither course is sound. The only sound course for the courts is to apply the law as it's written, not create it as they might wish it to be.

"Again the issue is not whether Bork is anti-abortion or anti-privacy. The question is this: Is Robert Bork unfit for the Supreme Court because he believes this decision [Roe v. Wade] is logically and constitutionally flawed? I think not.

"Of course we must protect minorities and even majorities from societal discrimination. But this doesn't mean that, because he's criticized the methodology the Court's used, he's any less committed to full and fair enforcement of the equal protection clause. All it means is that he's a smart and outspoken enough legal scholar to point out some of the very real problems with the Court's legal reasoning."

Los Angeles Times, July 25, 1990.

Republican Sens. Phil Gramm of Texas and Don Nickles of Oklahoma each gave tentative endorsements to Souter. But Republican Sen. John McCain of Arizona expressed frustration that the President had nominated a low-profile judge, apparently to avoid the kind of blood bath triggered by the nomination of Bork.

"Any first-year law student would tell you his chance of an eventual appointment to the Supreme Court is directly related to the paucity of writing or speaking on controversial issues," McCain said acidly. "It gives us a largely unknown quantity in appointments to the bench."
1.23.2008 9:14pm

Of course, there was a time when conservatives were significantly less sympathetic to a broad interpretation of the the First Amendment than were liberals.

Not being a law professor, I'm at a loss to recall offhand when conservatives were hostile to an interpretation of the First Amendment that included political speech. I think its somewhat disingenuous to conflate, say, the right to view pornography in the public areas of the public library, with the right to criticize the bottom dwelling incumbents in Washington. Not that I'm advocating either restriction, but there is a difference.
1.23.2008 9:41pm
gregh (mail):
I second what Jagermeister said.
It's a new one for me that one needed a broad interpretation of the first amendment to feel that McCain-Feingold was a violaton of free speech.
1.23.2008 10:17pm
The problem goes back to Buckley v. Valeo and the mixing of freedom-of-content with freedom-of-quantity for political speech. Once freedom-of-quantity was embraced, well, that meant campaign spending was equated to campaign speech, and boom, spending caps have to be unconstitutional. A correctable problem, of course, but not easily.
1.23.2008 10:43pm
Sasha Volokh (mail) (www):
Jagermeister &gregh: Think back to the famous antiwar speech cases of the World War I era, like Debs v. United States (1919) (under the Sedition Act); Gitlow v. New York (1925); Dennis v. United States (1951) (under the anti-communist Smith Act); United States v. O'Brien (1968) (about burning draft cards).... See, for instance, the Wikipedia article.
1.23.2008 10:44pm
Gilbert (mail):
@Jagermeister: I am assuming you would count speech in support of communism and anarchy, and the necessity and duty of overthrowing the government as falling within "political speech."

And as for McCain-Feingold, if money is speech (the way Scalia and Thomas wold hold) then we should all be free to wire funds to Hezbollah, orAl Qaeda for that matter. Jose Padilla's conviction starts to look pretty shaky (remember, it was "conspiracy," the bombing plot charge fell through).

It's just not simple enough for one side to claim exclusive fidelity to the First Amendment or the Constitution.
1.23.2008 10:52pm
Brett Bellmore:
Scalia and Thomas do not hold that money is speech. They hold that a regulation of money spent on speech is a regulation of speech. And this is transparently the case: McCain/Feingold aims to silence certain catagories of speech from certain speakers, by forbidding them to spend money being heard.
1.23.2008 11:15pm
jackom (mail) (www):
I agree with Jagermeister the viewpoint
My Website
1.24.2008 1:06am
Gilbert (mail):
@Brett Bellmore I would be quite interested to hear how you think that distinction affects the arguments presented here. I'm not sure it does.
1.24.2008 1:50am
Milhouse (www):
Gilbert, you've got it exactly backwards. If giving money to political campaigns is not speech, then giving money to Hizballah is not terrorism, and giving money to a hit man is not murder. And if the government is allowed to prevent you from buying ads for your favourite policitian, then it is also allowed to ban you from buying a flag to burn, or the kerosene and matches to burn it with. It may not be able to prevent you from printing a book on a press you made yourself, with home-made ink and paper, but it can ban anyone from buying it. No person honestly believes that that's what the first amendment means; those who claim so to believe are simply lying.
1.24.2008 2:09am
"so few conservative law professors have jumped on the McCain bandwagon"

Conservative law professors? What's that, maybe 8 out of 800 law professors?

I think conservative law profs probably pick and choose their battles given the hostility against them in the Academy.
1.24.2008 8:15am
DavidBernstein (mail):
JWB, but they have, in significant numbers, jumped on the Thompson, Giuliani, and Romney bandwagons.
1.24.2008 10:11am
Beth C. (mail) (www):
I'm in over my head among the legal scholars here, but that's sort of why I'm here--to get your opinions.

I've always been a bit mystified as to why others like me (non-lawyers) are so insistent that McCain-Feingold is a "violation of free speech" or how it means McCain disrespects the First Amendment. I've only heard demagoguery that sounds as though it's repeated from mailings sent by the groups who are directly affected by it.

So yeah, and the Swift Boat Veterans are the bogeymen of the right and left, and both arose due to CFR. I suspect that's another huge reason for people's consternation. However, there's nothing stopping people from supporting 527s, so I fail to see how their right to political expression is suppressed. Could the law be better? Of course. And for all the shrieking about McCain-Feingold, you'd think there'd be popular support for reforming it or making a solid legal challenge to it.

Honestly, I don't feel like MY rights have been violated, and wasn't CFR instituted in order to get the political process closer to how it was intended--one man, one vote?
1.24.2008 10:33am
It seems that fair elections are fundamental to our Constitutional structure of gov't. It seems that money can corrupt the process.

It seems the question is how to reasonably regulate one Constitutional interest to preserve the Constitutional gov't itself.

I'm not an academic, but I think too many politicians like Romney will talk and study and delay to avoid any political risk they can leave to future generations. The debt grows &immigration remains broken. Perhaps DC deadlock and divide is for the best, but gov't remains bloated. Give me a McCain who will actually initiate some solutions to needed problems. Yes, the solutions are flawed, but the critics can help by actually pitching in to the process.
1.24.2008 11:31am
Gilbert (mail):
@Millhouse That doesn't make one bit of sense. All your examples are just non sequiturs.

"If giving money to political campaigns is not speech, then giving money to Hizballah is not terrorism, and giving money to a hit man is not murder."

If it is not speech it is still an action which can be regulated (subject to enumerated powers) but if it is speech, to that extent it may not be regulated (subject to limits on incitement, etc)

As for the rest of it, I am entirely unable to see your point, but I am pretty sure no one who takes the time to make an argument about what the First Amendment means is "lying," yourself included.
1.24.2008 11:43am
theophilus (mail) (www):
I think it's imperative to note the era CFR came about. The Enron scandal, as I recall, indemnified corporate money in politics and made some response necessary by Congress.

Personally, I'm no fan of McCain-Feingold, but I think most people at the time saw this as a temporary solution. By no means a perfect fix, but an attempt at getting a handle on the situation.

I recognize that "handle" could be taken to mean regulation, a nasty word on a libertarian blog, but I for one think corporate influence that isn't transparent should be "handled". Complete transparency isn't available, so some regulation is necessary. One argument may be that 527's allow for corporate speech, but require a degree of transparency subject to public condemnation.

Furthermore, the opinion that McCain would use CFR as a litmus test is an assumption. Might it be that, being the principled candidate he appears to be, he would hold other principles as higher in value?
1.24.2008 2:58pm
McCain is neither conservative nor a liberal -- he is
a Multiculturalist. Today's NRO piece by Mark Krikorian is devastating.

I do not understand how anyone, liberal or conservative, can oppose English immersion for teaching the often US-born children of immigrants.
1.24.2008 5:41pm
John Herbison (mail):
According to his campaign website, Senator McCain takes the position that Roe v. Wade is incorrectly decided and should be overturned and that the abortion question should be returned to individual states.

Has he taken a position on whether Griswold v. Connecticut and/or Eisenstadt v. Baird were also wrongly decided and the question of criminalizing use or distribution of contraceptive devices should be returned to the states? After all, the specific language, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child", Eisenstadt, 405 U.S. at 453, (italics in original) predates Roe.
1.26.2008 3:22am