The McCain-Feingold Campaign Finance Reform Act is bearing more poison fruit. Not that that comes as a big surprise to anyone who has paid the least attention to the legislation. Before it was passed its opponents, of whose number I have always been a member, cried loud and long that it was an assault on our freedom of speech. But its provisions banning political speech by certain groups during the period leading up to an election were seen by Congress as a protection—against their own voting records—for incumbent politicians. Against that the First Amendment didn't stand a chance. Congress passed it. Bush signed it.
Now the CFRA, which is I think the primary reason many conservatives had a hard time supporting John McCain's bid for the Presidency, is being stretched beyond the realm of paid political ads, to the banning of books and films. For the Government, Deputy Solicitor General Malcolm Stewart is arguing, in front of the Supreme Court, that it has the right.
At issue is a film called Hillary: The Movie, a documentary produced by the nonprofit group Citizens United, which did not wish to see Senator Clinton elected president. Because McCain-Feingold prohibits so much as mentioning a candidate’s name in pre-election communications paid for by certain disfavored groups — unions and “corporations” — the filmmakers were informed by a federal judge that showing their work would constitute a crime. The filmmakers sued, and the case is Citizens United v. Federal Election Commission. Mr. Stewart is defending the government’s ban on this film; the same rules that apply to a campaign commercial apply to a documentary film, his reasoning goes. Justice Alito alertly pressed Mr. Stewart on that issue: If commercials and films are covered, how about books? How about campaign biographies? Yes, Mr. Stewart answered, the U.S. government is prepared to ban books, under certain circumstances, and is legally empowered by McCain-Feingold to do so. Jaws dropped, black robes fluttered.
Under the law, it depends on who is paying for those communications, and here the government has two targets, one well defined and one less so. The first group whose speech is suppressed under McCain-Feingold is labor unions. We rarely find ourselves on the same side politically, but we would not see them stripped of their First Amendment rights. The second group is “corporations,” a word that has practically become a term of abuse — good guys are businessmen, employers, or entrepreneurs, bad guys are corporations — but is in fact a common form of legal organization employed by a myriad of enterprises, including nonprofit advocacy groups, of which Citizens United is one. Let that sink in: The First Amendment was intended to protect political speech, the right to advocate causes and criticize government officials, and McCain-Feingold holds that organizations incorporated for the express purpose of engaging in political speech are to be burdened with special restrictions. Put another way, a stripper pole-dancing in Vegas has more robust First Amendment protections under current practice than does a political-advocacy group organized as a nonprofit corporation.
Hard to believe? Not at all. A couple of years ago the FCC "decided" that it would—for the time being—not apply the rules imposed by CFRA to blogs like this one. It was a good decision, but was not codified into law and they can "decide" the other way simply by changing their minds.
The string of outrageous assaults based on the CFRA's rules, upon Constitutionally protected rights, has proved beyond any doubt that McCain-Feingold is an abject failure. It must be repealed.