Everything I Know Is Wrong

US Government Argues it has Right to Ban Books and Films.

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.

NRO
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.

Inhofe: Roll Back the Bailout

Senator James Inhofe has called for legislation requiring congressional approval of any further spending of the $700 billion bailout money. Language in the bailout bill, as passed, has given Secretary Paulson sole discretion over how the money is spent—with zero oversight. As I've reported before, the bill says he cannot be investigated, nor even officially asked where the money is going. He has said he won't tell congress who is getting the money.

KFOR
"It is just outrageous that the American people don't know that Congress doesn't know how much money he (Treasury Secretary Henry Paulson) has given away to anyone,'' the Oklahoma Republican told the Tulsa World.

U.S. Sen. Jim Inhofe said Saturday that Congress was not told the truth about the bailout of the nation's financial system and should take back what is left of the $700 billion "blank check'' it gave the Bush administration.

"It could be to his friends. It could be to anybody else. We don't know. There is no way of knowing.''

What Paulson has said is that he has changed course 180 degrees and will not be buying bad mortgage debt, but will instead be directly purchasing equity stakes in major financial institutions. Inhofe contends, and rightly so, that this indicates that even Paulson believes that the plan, as originally conceived, can not work.

Via Drudge:

Inhoffe.gov
November 15, 2008

WASHINGTON, D.C. - U.S. Senator Jim Inhofe (R-Okla.), in a letter to his Senate colleagues, laid out his plan to push for legislation that will require Secretary Paulson's plan for the remaining $350 billion in authorized Troubled Asset Relief Program funds to be ratified by an affirmative vote in the U.S. Congress. In the letter, Senator Inhofe writes that the lame duck session provides Congress a tremendous opportunity to change course. Below is the text of the letter.

Dear Colleague,

I write to inform you of the actions I will be taking during the lame duck session of Congress regarding the funding status of the Troubled Asset Relief Program (TARP). Given the recent news about Secretary Paulson's execution of the TARP program, I firmly believe action is required by Congress. I plan to push for legislation that will require Secretary Paulson's plan for the remaining $350 billion in authorized TARP funds to be ratified by an affirmative vote in the U.S. Congress.

In my statement opposing the Paulson Plan last month, I laid out two primary reasons why I voted ‘no.' The first is that I wasn't convinced that asset-purchase program was the right way to do this, and the second is that it would lead to increased lobbying for handouts and bailouts by any industry facing financial trouble.  

I stated at the time that my vote was against the Paulson plan - not against taking extraordinary action to provide necessary confidence to financial markets. I stated that "The Paulson plan would have Washington take $700 billion worth of toxic Wall Street assets from financial firms' balance sheets and put them on the balance sheet of the federal government.... I'm not confident in its success."   

The critics were right. On October 14th, in a significant shift, Treasury outlined a plan to directly purchase equity stakes in of major financial institutions. The Wall Street Journal noted that "critics...say Treasury should have formulated a comprehensive plan earlier in the crisis." This past week, Secretary Paulson announced that he has completed a remarkable about face, as summarized by November 13^th Investor's Business Daily front page headline, which read, "In Major Reversal, Treasury Won't Buy Bad Mortgage Debt." This is a complete reversal. Why did Paulson reverse course? Thursday's Los Angeles Times provides the answer. "Treasury Secretary Henry M. Paulson's decision to abandon plans to buy troubled bank assets shows that he has come to two conclusions about what was once the chief focus of the government's $700-billion bailout: The first is that it wouldn't work."

I know many of you have serious concerns about how Secretary Paulson has executed the financial rescue program and I share them with you. Congress abdicated its Constitutional responsibility by signing a truly blank check over to the Treasury Secretary. However, the lame duck session of Congress offers us a tremendous opportunity to change course. We should take it.

During the lame duck session, I will be taking the following actions. First and foremost, if Secretary Paulson submits his plan to Congress in order to access the remaining $350 billion while we are in session, a doubtful prospect, I plan to immediately introduce the disapproval resolution pursuant to Section 115 of the EESA and push for its enactment. I will also introduce and actively pursue enactment of legislation to do two things: First, it will amend Section 115 of the Emergency Economic Stabilization Act of 2008 (EESA) to require an affirmative vote on the part of Congress to approve Treasury's plan for the remaining $350 billion, instead of the current statutory process which gives Secretary Paulson far too much latitude. Second, it will require a freeze on any remaining funds of the first $350 billion. It is imperative that we not allow that amount of money to be added to a deficit approaching $1 trillion this year without any input from the legislative branch. 

Secretary Paulson stated in a CNBC interview at 2:00pm on Friday, November 14^th that "the financial markets have been stabilized." If that is the case, it is Congress's duty to have a say in what happens with the remaining authorized amount of $350 billion. It is clear that it was a mistake to sign a blank check to one man for such a tremendous amount of money. Though there are still significant challenges in financial markets, it appears that the threat of a catastrophic financial crisis, which was the justification for the grant of such sweeping authority, has subsided. Perhaps the additional $350 billion should not be added to the deficit. Congress should have a debate.

I appreciate your time and attention to this matter and look forward to working with you in the coming week.

Sincerely,

Senator Jim Inhofe

Finaly, someone is challenging McCain-Feingold

McCain-Feingold has, since it was first conceived, been an affront to the Constitution. McCain-Feingold threatens freedom of speech, both literal speech and political-donations-as-speech, as well as providing loopholes such as 527 status for groups like Moveon.org who can, and do, say just about anything about just about anyone, with almost no regulation.

Washington Times
"We will bring two federal suits tomorrow to strengthen the Republican Party," Mr. Duncan told The Washington Times.

Mr. Duncan said one suit will be filed in the District of Columbia to strike down the soft-money ban that is the central tenet of the McCain-Feingold Act — formally known as the Bipartisan Campaign Reform Act of 2002. "Soft money" is largely unrestricted contributions from wealthy individuals, corporations and labor unions.

The second suit will be in a Louisiana federal court to strike down the limits under the law Mr. McCain co-sponsored with Sen. Russ Feingold, Wisconsin Democrat, that control coordination between parties and their candidates.

The BCRA is the worst of both worlds: restricted political speech for average citizens, and campaigns have virtually no accountability for things said on their behalf. Far from removing big money from elections, the BCRA's dubious initial purpose, it has allowed billionaires to completely dominate the process. McCain Feingold is not salvageable, it must be thrown out in its entirety. Start over.

If you haven't followed the BCRA, or just want to refresh your memory, here are some past posts on the subject.

Campaign Finance Reform a Fraud from Start

Right to Free Speech? Maybe- Maybe Not

Civil disobedience is in our future

He Said No Such Thing

Ninty Days Is Up

FEC chooses minimal regulation of internet/blogs

Finally it's a "Loophole"

FEC chooses minimal regulation of internet/blogs.

Friday evening the FEC made good on its promise to announce new regulations for the Internet—required by the Bipartisan Campaign Reform Act—by the end of March. At this point the proposed regulations seem to be mostly benign.

Washington Post
The Federal Election Commission last night released proposed new rules that leave almost all Internet political activity unregulated except for the purchase of campaign ads on Web sites.

"My key goal in this rule-making has been to make sure that the commission establish clear rules to exempt individuals who engage in online politics from campaign finance laws," said Chairman Michael E. Toner, a Republican.

WaPo reports that campaign ads on weblogs would need to include a "disclaimer" but that there would be few other restrictions for most bloggers at this time. The problem, as I see it, is that these regulations will remain lenient only at the whim of the FEC. The regulations can change with the FEC's fancy, or as their membership changes. In fact, soon as Monday they will be discussing possible changes to the regulations.

The FEC's six members generally support the proposed regulations, but individual commissioners are expected to offer amendments when they meet Monday.

An early warning to the blogosphere from former FEC Chairman Brad Smith, and the fact that current FEC Chairman Michael Toner is apparently sympathetic to blogger's concerns—and is aware of the fundamental importance of the first amendment—has kept the wolves at bay so far. One would think the first amendment would be authoritative enough to prevent the abridgment of our free speech but, based on the history of infringements by McCain-Feingold, legislation is clearly needed to clarify limits on the BCRA.

These proposed "friendly" regulations may have the effect of reducing the vigilance of bloggers on this critical constitutional issue. I hope not. Congress has delayed action on any and all legislation that would prevent the FEC from enacting restrictions on free political speech on the Internet. They cannot be counted on to act on the Online Freedom of Speech Act without continuous—vocal—encouragement.

Update: Captain Ed agrees...

We should not forget that the author of all this silliness, the Bipartisan Campaign Reform Act (BCRA), still remains in force, and that this exemption exists at the pleasure of the FEC. We still need a solid commitment from Congress that will restrict the actions of later FECs in regulating free speech on the Internet. We need to support House bill 1606, which will make the blog exemption an act of Congress that the FEC cannot reverse. Beyond that, we need to restore sanity to the electoral-campaign process by repealing the BCRA (aka the McCain-Feingold Act), forcing all political contributions to be handled alike and in the open, and quit attempting to stifle speech in a vain attempt to purify politics.

Update: On National Review Online, former FEC Chairman Bradley Smith explains the difference between the two main sets of legislation soon to be before the House.

Update: Here is the FEC's draft Final Rules and Explanation and Justification addressing Internet communications in order to comply witht he District Court's decision.

Update: Brad Smith, having at least partly reviewed the FEC's draft, seems mostly happy. His reservations are the same as mine.

Red State
The biggest problem with the rules is simply the principle established - the internet is now to be subject to regulation.  The FEC can change the rules - extend them - when it wants.  My friend and current Commission Chairman Michael Toner put it best most succinctly in a private conversation we had while I was still on the Commission a while back: "Isn't there any area of political discussion that we can just leave unregulated?"  The answer, for far too many, in the so-called "reform" community, in Congress, in the MSM and elsewhere, appears to be "no, there is no area of political discussion that should be free from government regulation." So most web activity - except for paid ads - will remain exempt, but as a matter of administrative grace rather than right.  Rick Hasen, who runs the widely cited Election Law site, is already disappointed that the rule doesn't require more mandatory disclosure.  We can expect "reform" groups such as Democracy 21 and the Campaign Legal Center to regularly lobby for extensions of the FEC approach to regulate more activity...

For those who have been following the action in Congress, the FEC's move largely undercuts any argument to be made for H.R. 4900. It does not undercut the argument for H.R. 1606, which would simply exempt much internet activity from the law.  But I expect it will lead Congress to shelve the measure.

After a little more thought I think I can say that the word "reservations" doesn't even come close to the way I feel about this situation.

Civil disobedience is in our future.

It's coming down to the wire. Our constitutional right to free speech is being threatened. Directly. Imminently.

The Constitution states it very plainly:

Amendment I
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.

How much simpler could it get? Congress shall make no law abridging the freedom of speech. Yet our freedom to speak is under attack. Largely due to the efforts of conservative pretender John McCain, and his so-called campaign reform.

Newsmax
They are two of America's free, unregulated voices of political activism but a gathering storm of Washington regulation threatens to stifle them forever.

Grass-roots activists and Internet bloggers, who largely escaped the restrictions of the 2002 McCain-Feingold campaign finance reform act, are the targets of a looming, two-pronged government assault which aims to lasso and corral the last wild mustangs on the political range.

This is no joke. It is not a trivial thing. The danger that regulation by the FEC poses to our rights is serious enough to have united the political left and right in a struggle against it. Legislation has been proposed but little is being done to pass it—despite support from former FEC Chairman Brad Smith, and current FEC Chairman Michael Toner. There is also legislation that has been proposed as an "alternative."  

The Online Coalition [I keep a graphic link to their website on the left menu bar]
Right now – there are TWO bills in Congress that will affect bloggers – one good, one bad. The bill that deserves our support is HR 1606 – The Online Freedom of Speech Act.

The other bill – HR 4194 – is a substitute offered by those most interested in regulating the internet. Its supporters are engaged in an aggressive campaign to pass this legislation in Congress, in an effort to muddy the waters and distract Congress from passing real protections for bloggers. They're so terrified of your freedom to speak your mind that they've actually compared giving freedom to bloggers to the scandal involving Scooter Libby in the White House. No, we're not making that up.

In order to pass the bill we want – we need to stop the sham alternative bill – HR 4194.

Their measure, H.R. 4194 purports to protect “bloggers” from campaign finance regulation. But, in fact, it is so riddled with exceptions and exclusions that it is worse that nothing.

Problems with 4194:

• It offers no guidance as to the treatment of group political activity, potentially treating all group websites that discuss federal candidates as political committees

• It would stifle technological innovation. H.R. 4914 specifically mentions “blogging”, but ignores such as already-widely used technologies like podcasting, wikis and peer-to-peer networks, let alone the technologies of tomorrow.

• Its alleged protection to incorporated bloggers offers no real protection. In comments filed before the FEC, supporters of H.R. 4194 have stated explicitly that those websites which endorse, expressly advocate, and urge readers to donate funds to the election of preferred candidates do not qualify for protection under the law. This would force bloggers that speak forcefully about politics to seek legal counsel – a complete disaster.

This measure is a smokescreen designed to confuse the issue and prevent better laws from passing. Call your Representatives in Congress and make sure they understand that H.R. 4194 is unacceptable.

Click here to search for your member of Congress by zip code.

Newsmax reports that, for the Online Freedom of Speech Act, "they anticipate floor debate sometime during the week of March 28, but it's still unclear whether it will pass at that point. Though political opposites Tom Coburn, R-Okla., and Harry Reid, D-Nev., are co-sponsoring a bill similar to the OFSA in the Senate, Congress in general has been dragging their feet. They have ignored every opportunity to protect bloggers, and there have been plenty of them. It seems that having a vocal population, with a platform from which to speak, is a threat to their power.

As for the legacy media, they see restrictions on Internet and blogger speech as a way to rebuild their iron-fisted control of information dissemination.

Traditional media organizations have come out in favor of increased regulation. "It is imperative," wrote the New York Times in an editorial, "that the courageous lawmakers who supported the McCain-Feingold reform law four years ago stand together against making the Internet a cornucopia of political corruption."

Rep. Mike Conaway, R-Texas, countered, "A better argument for the New York Times would be to tell America that they really want to end political conversation on the Internet to resurrect their power over political commentary."

Despite Chairman Michael Toner having delayed as for long as possible, the FEC has said they will begin making decisions at the end of March—seven days from now. Click on the link above. Contact your Congressmen. All of them.

Do it now!