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First things . . . Richard Falknor on 21 Jan 2010 04:56 pm

High Court Boosts Free Speech, Curtails McCain-Feingold


“’This Supreme Court decision is a welcome victory for freedom of speech and democratic participation,’ said [Republican Study Committee] Chairman Price. ‘Some may characterize today’s decision as a win for unions and corporations, but it’s really a win for the Constitution and all those who want their voices heard by their elected officials and the American public.'”-  – – Representative Tom Price

Paul Sherman of the Institute for Justice sums up
today’s crucial Supreme Court holding on National Review on Line (NRO) in his “Citizens United Decision Means More Free Speech” – –

“First, some background. During the 2008 election,the nonprofit group Citizens United wanted to make a film available on cable-on-demand that was critical of then-candidate Hillary Clinton. But because Citizens United is organized as a corporation, its speech was banned under the McCain-Feingold campaign-finance law. Citizens United challenged this ban, and on Thursday, Jan. 21, 2010, the U.S. Supreme Court handed down its ruling, striking down this provision of McCain-Feingold and reversing a previous ruling — Austin v. Michigan Chamber of Commerce — that permitted the government to ban corporations and labor unions from promoting or opposing political candidates.

The ruling represents a tremendous victory for free speech and a serious blow to proponents of campaign-finance ‘reform,’ who have roundly denounced the ruling and have all but predicted the downfall of the Republic as a result. But the reformers’ rhetoric is just that; the Court’s ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy.”

Here is the text of the Court’s holding.

NRO’s Ed Whelan highlights some extracts from Justice Kennedy’s majority opinion – –

“These passages (emphasis added; citations omitted) from Justice Kennedy’s excellent majority opinion . . .in the 5-4 ruling starkly illustrate what was at stake:

‘The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.’ “

Also from NRO is Steve Hoersting’s question – –

“. . . [W]hether corporations brave enough to take advantage of the opinion, and go against the Democrats, will risk audits or the nationalization of their businesses.”

Some Revealing History of Attempts to Control Political Speech

NRO’s Yuval Levin points us to Bradley Smith’s “The Myth of Campaign Finance Reform.”

“March 24, 2009, may go down as a turning point in the history of the campaign-finance reform debate in America. On that day, in the course of oral argument before the Supreme Court in the case of Citizens United v. Federal Election Commission,United States deputy solicitor general Malcolm Stewart inadvertently revealed just how extreme our campaign-finance system has become.

The case addressed the question of whether federal campaign-finance law limits the right of the activist group Citizens United to distribute a hackneyed political documentary entitled Hillary: The Movie. The details involved an arcane provision of the law, and most observers expected a limited decision that would make little news and not much practical difference in how campaigns are run. But in the course of the argument, Justice Samuel Alito interrupted Stewart and inquired: ‘What’s your answer to [the] point that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the internet, providing DVDs, either through a commercial service or maybe in a public library, [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?’ Stewart, an experienced litigator who had represented the government in campaign-finance cases at the Supreme Court before, responded that the provisions of McCain-Feingold could in fact be constitutionally applied to limit all those forms of speech. The law, he contended, would even require banning a book that made the same points as the Citizens United video.” Read more . . .

We have frequently written about the dangers of the McCain-Feingold legislation (the “Bipartisan Campaign Reform Act of 2002″) restricting free political speech which a Republican president with the support of many in his party here and here wrote into law, and about Justice Antonin Scalia’s scathing comments here on that foolish and anti-constitutional measure.

Maryland and Virginia conservatives will want to keep in mind Republican incumbents in the Congress, notably Virginia’s Representative Frank Wolf, who voted for what Justice Scalia called – –

 “. . . [A] law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about.We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of ‘soft’ money to fund ‘issue ads’ that incumbents find so offensive.”

As we said after the Scott Brown victory in Massachusetts, it will be a long slog to turn around the excesses of the administrative state – – whether at the Federal or the mega-county level. All of us, Tea Partiers included, must not lose patience and must do our homework on a variety of seemingly “insider” issues that are crucial to our freedom and prosperity. 

* * * *


Hans Von Spakovsky from Heritage here: “Almost every one of the many associations we have in this country (no matter which side of the political aisle they are on), from the NAACP to the Sierra Club to the National Rifle Association, are also corporations. Yet those corporate associations were prohibited under penalty of criminal and civil sanctions from expressing the views of their members in the political arena over which particular candidates should be elected to uphold the positions on important issues of public policy that their members believe in unless they complied with certain very restrictive, complex provisions.”

Richard Viguerie from ConservativeHq here: “Today’s Supreme Court decision: Good Riddance to Incumbent-Protection Censorship; Hello Insurgents” – – “The dirty little secret about all campaign finance laws passed by Congress since 1972 is that they were designed to protect incumbents by stifling competition. This ruling is especially important for advocacy causes and organizations, which may now more freely express opinions about incumbents.”

. . . . .

“The Supreme Court decision today will increase the number of incumbents (Republican and Democratic) who will decide not to run for reelection this year so as to ‘spend more time with their family.'”

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