THOMAS MITCHELL: Hammer a stake into the heart of McCain-Feingold - Opinion

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Sep. 13, 2009
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THOMAS MITCHELL: Hammer a stake into the heart of McCain-Feingold

THOMAS MITCHELL
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The First Amendment, as rewritten under the McCain-Feingold campaign finance law: "Congress shall make no law ... abridging the freedom of speech, or of the press, except if it is funded by a corporation, unless it is a media corporation, or if the speech occurs just prior to an election, unless it is in the form of a book, which, even though the law covers books, too, the Federal Election Commission would never apply that law to books because we say so, though we said something entirely different a couple of months ago."

In an apoplexy of righteous indignation over the corrupting influence of filthy lucre on our political process, Congress in 2002 passed the Bipartisan Campaign Reform Act, which I prefer to call McCain-Feingold to remind everyone of the two culprits chiefly responsible for it, Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin.

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It has created an impenetrable bureaucratic maze of legalese that has gagged those who wish to participate in election campaigns.

The case of "Hillary: the Movie" was reargued in front of the U.S. Supreme Court on Wednesday. A group called Citizens United tried to air a movie critical of presidential aspirant Hillary Clinton during the 2008 primary, but was blocked under threat of criminal felony prosecution under McCain-Feingold. Talk about abridging.

The exchanges between the justices and the attorneys arguing the case were nothing short of bizarre.

When the case was first argued in March, the government lawyers insisted books would be covered under the law, which Justice Samuel Alito said was "pretty incredible." But on Wednesday Solicitor General Elena Kagan backtracked, saying the FEC had never applied the law to books, but she did say pamphlets might be covered. Isn't a book just a really long pamphlet?

To Kagan's contention, Justice Antonin Scalia replied: "So you're -- you are a lawyer advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this. This statute covers it, but don't worry, the FEC has never done it. Is that going to comfort your client? I don't think so."

At another point, Justice Alito commented on the nebulous nature of the law and how it might be applied or misapplied. "Well, what if the particular -- what if the particular movie involved here had not been distributed by Video on Demand?" he asked. "Suppose that people could view it for free on Netflix over the internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater. Suppose the exact text of this was distributed in a printed form. In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited."

Any law that can be applied or not applied at the whim of some unelected bureaucrat is an invitation to tyranny.

The attorney for Citizens United, Theodore Olson, told the court Wednesday that "the most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates. We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls."

Two days earlier, Olson penned an op-ed for The Wall Street Journal. In that piece, Olson addressed succinctly the constitutional issue raised by the attempt to distinguish the money to pay for speech from the content of the speech.

"In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections," he writes. "And it responded to a nonproblem with a sledgehammer rather than a scalpel."

He also noted the loophole granted to the media in McCain-Feingold. This includes NBC, owned by GE; ABC, owned by Disney; and the corporations that own all the major newspapers, including The Wall Street Journal and The New York Times and the Las Vegas Review-Journal.

Olson rightly concludes this case is less about a corporation's right to speak, but more about our right to hear all the pertinent arguments at election time -- "it is about our right to hear those voices and to judge for ourselves who has the soundest message."

The justices have previously narrowly upheld McCain-Feingold while jettisoning some aspects. This is their opportunity to throw the whole thing out as anathema to the First Amendment.

Thomas Mitchell is editor of the Review-Journal and writes on the role of a free press and free speech. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. Thomas Mitchell wrote on September 14, 2009 10:54 AM: Glad to see a couple of people versed enough in history to recall that anonymous pamphlets were more common than not. John Peter Zenger was a printer, not a writer. Enough "Common Sense" was first published anonymously. ron wrote on September 14, 2009 08:44 AM: "if mitchell is correct that the first amendment applies inherently to corporations, then corporations ought to sue for their right to vote; the right to have tobacco ads on tv; the right to have words such as 'pis@';'shi'; 'fuc'; and 'cun' in their dialogue, billboards and advertisement." As an individual you have the right to vote. As a sole proprietor or member of a partnership or any other group you do not get an extra vote. Right or wrong the court distinguishes between political and commercial speech. As an individual, sole proprietor, member of a partnership or any other group you are limited in your ability to advertise commercial products. Your argument is without merit. ron wrote on September 14, 2009 07:23 AM: "I agree the Founders would put a stop to anonymous bloggers, posters, and tweeters whether they're regular citizens, corporate employees, union members, government officials or reporters." Do you mean the founders that penned the Federalist Papers anonymously or the ones that wrote the so called anti-Federalist papers? Independent American wrote on September 13, 2009 09:48 PM: Well the Independent American Party has finally had enough of the State's equivalent with these anti-assmebly anti-free speech campaign finance reporting laws that have decimated the Independent American Party because they stood up against the anti-Constitution laws. Deputy Attorney General Clark Leslie, just last week, requested a dismissal of the case against former gubernatorial candidate Christopher Hansen from 2006 AD and now the IAP legal counsel has agreed to go to Federal Court under 42 USC sections 1983, 1985 and 1986 to stop the never ending violations of the Constitutions by the tyranny of the Attorney General and the Secretary of State. I do so hope it costs Nevada tax payers millions for supporting these unconstitutional laws and allowing for these Republican and Democrat tyrants to destroy the free and open election process. The RJ has historically supported these crush the little guy election finance reporting laws. Remember these tyrants were elected by voters. The buck stops with the tax payers. So too bad if it costs you millions. As you sow so shall you reap. Groune Dunder wrote on September 13, 2009 08:34 PM: Tom, I find your detractors on this issue a puzzling mix of cynics and purists who nonetheless seem most interested in condescending to you while shushing you up. My two cents: Whine away Tom, the louder and more often the better. "Any law that can be applied or not applied at the whim of some unelected bureaucrat is an invitation to tyranny...." bears frequent repeating from you, the press, the voters, from our appointed justices, right now more than ever, and even "disingenuous' though these ideas may be when measured against practice. It is in fact our right --and need --to hear facts and opinions pertinent to our selection of candidates that must remain available to whatever extent possible, and for as long as possible. Effete readers may be unable to grasp this as they may have the insider information that truly makes or breaks campaigns, but the greater the access to relevant information for the average citizen, the longer we may at least forestall that tyranny which Patrick and other cynics apparently regard as fete in progress if not complete. The very fact that NRS gives Corporations and entities such rights as would make the Founders cringe is all the more reason that oversight of their 'exercise' of rights be visible to voters. The exchange on 'anonymous publications' I found confusing, as our Founders used pseudonyms and anonymity-- Franklin and Jefferson--didn't they? That aside, it is precisely because we declare under different parties that your voice in the RJ is so important to this reader. This was directly on point. Keep whining, Please. NRS 294A.009 makes your equal time, Essential.... Paul Ling wrote on September 13, 2009 04:37 PM: "The attorney for Citizens United, Theodore Olson, told the court Wednesday that "the most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates. We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls." Made me think of Danny Tarkanian winning a defamation case 4 years after fact against his opponent. schreech wrote on September 13, 2009 04:35 PM: patrick, my first post spelled out all the bad words and didn't get through the filter! LOL! I do appreciate it is the rj's pill box and they are entitled to censure posts, but i think you'd appreciate what happened. schreech wrote on September 13, 2009 04:33 PM: patrcik, very well put! If my memory serves me, there was a supreme court case several years ago dealing with corporate advertising. the justices upheld a prohibition on advertisement where people were a 'captive audience'. supreme court allowed a corporation to be considered a 'person' in the 20th century, though corporations have been in common law for long time. if mitchell is correct that the first amendment applies inherently to corporations, then corporations ought to sue for their right to vote; the right to have tobacco ads on tv; the right to have words such as 'pis@';'shi'; 'fuc'; and 'cun' in their dialogue, billboards and advertisement. constitution says interstate commerce can be regulated by congress. Hard Times wrote on September 13, 2009 11:54 AM: Tom: By "anonymous publications" do you mean my comments on the RJ's web articles? I've got no problem going public, long as it's required of everyone. I didn't create the policy. I agree the Founders would put a stop to anonymous bloggers, posters, and tweeters whether they're regular citizens, corporate employees, union members, government officials or reporters. Change your anonymous posting policy, Tom. Just don't pick and choose posts like you do with letters to the editor. I'm ready to give it a try. It'll clean up some of the garbage posts. HELEN WEILS wrote on September 13, 2009 11:46 AM: TO HARD TIMES: WE NO LONGER HAVE ANY 'NATURAL PERSONS' IN THE USA SINCE WE HAVE ALL BECOME SLAVE CLASS CITIZENS OR 'CORPORATE PERSONS' WHEN WE GOT THE SS NUMBER STAMPED ON US. NOW WE'RE ALL JUST A BUNCH OF SLAVES WITH 'PRIVILEDGES AND BENEFITS' 'GRANTED' TO US BY THAT GREAT BIG BLOATED FEDERAL GOVERNMENT. THE 14TH AMENDMENT DIDN'T FREE THE SLAVES IT ENSLAVED THE AMERICAN PEOPLE. NOW THE SLAVES ARE OUR MASTERS. Read All Comments