Will SCOTUS finally put a stake in BCRA?
The Supreme Court announced yesterday that it will consider whether to uphold a ban on corporate spending in federal elections, a move that campaign finance experts said could have a dramatic effect on the 2010 and 2012 federal elections.
In a surprise move, the court said it would delay a decision on whether a conservative group’s film criticizing then-Sen. Hillary Rodham Clinton ran afoul of the McCain-Feingold campaign finance act.
Instead, the court scheduled a rare September hearing on whether the law itself raised constitutional questions and it said it would reexamine a 1990 decision that said restricting corporations from spending money from their general treasuries to support or oppose political candidates did not violate constitutional guarantees of free speech.
“This has the potential to be a blockbuster,” said Michael E. Toner, a former chairman of the Federal Election Commission. He said the issues have implications for “the whole architecture of the federal campaign financing system.”
McCain-Feingold IS a violation of the First Amendment. For those that aren't exactly up-to-date on why this is a violation, let me explain. When the Framers began debate and passage of the Bill of Rights in 1789, the did so under the idea that the Bill of Rights would serve as the ultimate check against federal power over the people. In other words, they knew that without the Bill of Rights, the federal government could easily trample our God-given rights. Everyone likes to point to this amendment or that amendment as the most important ones. Honestly, the most important amendment to the Constitution is the Second Amendment. Without it we have no way to defend the rest of them against the possibility of the federal government becoming tyrannical.
The First Amendment is all about our political power. It ensures that the government can't intervene in how we worship, and prevents it from recognizing one single religion as a state religion (a la England with the Church of England). It guarantees that the press will have unfettered abilities to level criticism at the federal government without fear of reprisal. It provides that we, the people, can say what we want about the federal government without having to worry about a backlash from the government. It also allows us to protest openly and peaceably, and it allows us to take our gripes to the government. All of this is guaranteed without any fear the government would initiate a crackdown (a la Iran right now), and arrest us for executing our rights.
McCain-Feingold meddles in this right. It puts limits on our political speech. Citizens United is represented by Ted Olsen, formed US solicitor general, and their argument is simple: McCain-Feingold unconstitutionally forbids them from putting together anything that is critical of a particular political candidate. McCain-Feingold put restraints on when critical ads could be run during an election, and the FEC contends that Citizens United's documentary about Hillary Clinton violated the BCRA.
The right for us to criticize our elected officials is near-absolute. I say that because we still can't implicitly lie about a person, or defame their character through said lies. But the documentary didn't lie about Ms. Clinton. Citizens United poured over her record as a senator and as First Lady, and put together a documentary making the argument that she wasn't the right person to be president. (Memo to Citizens United: After four years of Barry you'll wish to God she had been president.) This is no different than Marcie or I saying that we don't think Barry was the right guy for the job, or to criticize Senator McCain for what he's done, especially in the last eight-plus years, that is contrary to what the party wanted him to do.
Could SCOTUS finally kill BCRA? Justices Alito, Thomas, and Scalia have all stated they believe BCRA to be unconstitutional. While the idea was sound -- to reform how campaigns are financed -- the sad truth is that Sens. McCain and Feingold screwed this up. Thanks to their efforts, the 527s rose to prominence in 2004, and while many of them had a certain task, far too many of them on the liberal side were funneling the so-called "soft money" into campaign coffers. McCain railed about the "soft money" problem in elections, and we firmly believe one of the biggest reasons why he decided to move on this issue was because he lost the nomination in 2000. It was, simply put and in our opinion, and act of spite.
Make a note on your calenders for 9 September. That's when oral arguments will be heard on this case before SCOTUS. If Mr. Olsen is properly prepared (which he always is), then there's a good chance he can persuade SCOTUS to finally kill this insane beast of a law.