Speech Still Free For Those Who Can Pay For It

Released on the same day as the decision discussed below by Boarder, the Supreme Court struck down limits on political advertising spending. Rolling back a major portion of the McCain-Feingold bill that was upheld in 2003, the Court’s decision allows partisan groups to air commercials that don’t explicitly endorse one candidate. Of course, tearing down the other candidate with a cartoonish distortion of his or her positions is fine, as long as it doesn’t end with, “So vote for this person.”

As Justice Scalia pointed out in his concurring opinion, the Court’s decision today effectively overturns the 2003 decision that upheld the constitutionality of the campaign finance reform bill. With a classic Scalia zinger, he characterized Chief Justice Robert’s careful approach to yet another fresh precedent overturned as duplicitous: “This faux judicial restraint is judicial obfuscation.” Justices Scalia, Thomas, and Kennedy favored overturning the previous decision and eviscerating campaign finance reform, while Justices Alito and Roberts were unwilling to go so far (remember, Roberts pledged to seek more unanimity on the court – apparently this means subtly overturning previous decisions in 5-4 decisions, instead of honestly owning up to the Court’s new direction and ideology).

Even with the McCain-Feingold bill, we are seeing a primary season that stretches nearly from the mid-term elections through 2008. Candidates who are unable to raise 15-20 million dollars a quarter are considered dead men walking. And, I assure you, corporations are still being heard in Washington. So does campaign finance infringe on free speech? This is a hard question, and one that deserves better treatment than the tail-end of a post. While the Bill of Rights was meant to protect individuals from the government, and political minorities from the tyranny of the majority, we have a completely different situation here. The minor curtailments on political speech in the reforms hinder those who already, at many levels, dominate our political discourse. When the founders and the first Congress debated the Bill of Rights, I highly doubt they envisioned the silencing of the governing minority.

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