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Monday, June 25, 2007

FEDERAL ELECTION COMMISSION v. WISCONSIN

Update: Shrinkwrapped on free speech:
The powerful have never enjoyed criticism; in reality, few of us do enjoy criticism. Generally our tolerance for criticism is inversely related to the accuracy of the criticism. When those we elect to serve us begin to confuse their own desire to escape criticism with what is best for their constituents, the erosion of our rights escalates. McCain-Feingold was a well intentioned and poorly conceived abomination that has failed in almost every conceivable way (and the Supreme Court today has begun redress); the Fairness Doctrine was a poorly intentioned and well conceived abomination which should remain interred.

It appears that the next election will be all about various "issues" that will serve primarily to obfuscate serious threats to our fundamental rights...interesting times impend.
End Update

A very important decision was handed down in Federal Election Commission v Wisconsin Right To Life, Inc. The link is to a 93 page pdf off the SC website.

I'm looking forward to reading this one thoroughly, because Scalia dissented as to the test (joined by Thomas and Kennedy) and the Fab Four of "Active Congressional Liberty and Lifetime Senatorial Office Tenures" apparently dissented en bloc, etc. The final result was that Wisconsin RTL should have been allowed to run its ad asking that voters contact their representatives to ask them to allow the federal judicial candidates to receive a floor vote, even if the ads were running close to an election.

To whet your whistle, here's Scalia (starts on page 37):
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: “‘I’m not a revolutionary, I’m just defending freedom of speech. . . . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’”1 Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or acorporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running.
...
There is wondrous irony to be found in both the genesis and the consequences of BCRA. In the fact that the institutions it was designed to muzzle—unions and nearly all manner of corporations—for all the “corrosive and distorting effects” of their “immense aggregations of wealth,” were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including incumbents). In the fact that the effect of BCRA has been to concentrate more political power in the hands of the country’s wealthiest individuals and their so-called 527organizations, unregulated by §203. (In the 2004 electioncycle, a mere 24 individuals contributed an astoundingtotal of $142 million to 527s. S. Weissman & R. Hassan, BCRA and the 527 Groups, in The Election After Reform 79, 92—96 (M. Malbin ed. 2006).) And in the fact that while these wealthy individuals dominate political discourse, it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled.I would overrule that part of the Court’s decision in McConnell upholding §203(a) of BCRA. Accordingly, I join Parts I and II of today’s principal opinion and otherwise concur only in the judgment.
It really is incumbent-protection legislation, and that is why it has such bipartisan support. To form a corporation is cheap, and unions are already around. Lord forbid that these nattering little people mess up the wonderfully planned media campaigns of Congress; such doings are, apparently to a majority of Congress, a demoralizing corruption of their benign reign which defeats the public's interests because of course the public would not wish their precious time to be taken up with explaining to such niggling gnats of democratic hubris why they voted as they did.

This is great stuff. Honestly, once you start reading Supreme Court decisions you won't be buying best sellers any more. These things are more gripping, especially the back and forth. Scalia, Kennedy and Thomas are right. Most of BCRA is profoundly unconstitutional; from now on in this blog it will be designated the "Bad Congressman Rescue Act".

This is the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Assembly in a corporation or a union does not cause people to lose their First Amendment rights. Indeed, to compete with the very large corporate funnelings of money to candidates, citizens may well be driven to pool their resources to air their concerns.


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