Posted by: Debby Durkee | January 23, 2010

Free Speech Landmark.

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Free Speech Landmark.

Rush Limbaugh has always called the McCain-Feingold Campaign Finance Law – The Incumbent Protection Act. Well, it got a good smack down Thursday via the Supreme Court and the Constitution of the United States. This is from the Wall Street Journal:

Freedom has had its best week in many years. On Tuesday, Massachusetts put a Senate check on a reckless Congress, and yesterday the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress’s more intrusive limits on election spending.

In a season of marauding government, the Constitution rides to the rescue one more time.

Justice Anthony Kennedy wrote yesterday’s 5-4 majority opinion in Citizens United v. Federal Election Commission, which considered whether the government could ban a 90-minute documentary called “Hillary: the Movie” that was set to run on cable channels during the 2008 Presidential campaign. Because it was funded by an incorporated group and was less than complimentary of then-Senator Hillary Clinton, the film became a target of campaign-finance limits.

The 2002 Bipartisan Campaign Finance Act, aka McCain-Feingold, banned corporations and unions from “electioneering communications” within 30 days of a primary or 60 days of a general election. Yesterday, the Justices rejected that limit on corporate spending as unconstitutional. Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.

Justice Kennedy emphasized that laws designed to control money in politics often bleed into censorship, and that this violates core First Amendment principles. “Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence,” he wrote. The ban on corporate expenditures had a “substantial, nationwide chilling effect” on political speech, he added.

In last year’s oral argument for Citizen’s United, the Court got a preview of how far a ban on corporate-funded speech could reach. Deputy Solicitor General Malcolm Stewart explained that, under McCain-Feingold, the government had the authority to “prohibit the publication” of corporate-funded books that called for the election or defeat of a candidate.

That was a shock and awe moment at the Court, as it also should have been to a Washington press corps that has too often been a cheerleader for campaign-spending limits…Snip –

The Court’s opinion is especially effective in dismantling McCain-Feingold’s arbitrary exemption for media corporations. Thus a corporation that owns a newspaper—News Corp. or the New York Times—retains its First Amendment right to speak freely. “At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue,” wrote Justice Kennedy. “This differential treatment cannot be squared with the First Amendment.”

The Democrats are squealing like pigs because this could really cut into their lording over corporations. This couldn’t have happened at a better time.

And why would Obama react like this? From law professor/blogger Ann Althouse:

So, the Supreme Court came out with a big free-speech decision yesterday, and President Obama’s response was that he needs “to develop a forceful response to this decision. The public interest requires nothing less.”…

The President was a law professor — technically, a “senior lecturer” at the University of Chicago Law School — for 12 years. Why would a law professor oppose a Supreme Court decision on a matter of constitutional law and not respect the authority of the Court and honor our system of separation of powers?

Althouse hasn’t yet attempted an answer to that question, but many of her commenters have some interesting answers. My opinion – he’s a lawyer first and thinks like one, so he wants to appeal the ruling somehow. And, as a Marxist (in my opinion) he also doesn’t believe in the Constitution. He said it is a set of “negative laws” that say what the government can’t do rather than what government can do.

In the political aspect of this decision, since Obama’s administration has been about picking winners and losers in the economy (those who pay protection money will be left alone), if those who don’t pay instead pay to oppose them at the ballot box, then do politicians lose their cozy pay to play scheme? And, when politicians go on a warpath, as Obama is right now, against corporations (namely the banks), now they can take out ads before an election to say he’s full of crapola, right?

Also, since unions have a big bunch of cash and are in the hip pocket of the Democrats, don’t corporations have a lot more money? No wonder Democrats don’t like this decision. Corporations have long been the Democrats’ whipping boys, but what happens when/if corporations don’t just lie down and take it? Maybe corporations really won’t want to get into campaigns because they could alienate a huge swath of potential customers, but if customers are already being alienated via Democrats’ free speech, why not fight that with free speech of their own? That’s the beauty of free speech. Free speech that you don’t like can be fought with more free speech.

And since media corporations were exempt from McCain-Feingold, this ruling puts the media back on an even keel with the rest of the corporate world. That’s a good thing.

UPDATE: Here’s a great, short video (produced before the Supreme Court decision) putting into perspective what campaign finance laws are really about: government running roughshod over free speech. From the Cato Institute:


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  1. Basically, what’s fair for one side must be fair for the other side as well. Makes sense to me.

  2. Great explaination of the ruling! When in doubt let freedom reign!

  3. Democrat view: Everybody has free speech equally. It’s just that some are more equal than others.

  4. Well, you know I did see a video the other day of Rahm Emmanuel saying something to the effect of, “Freedom of speech is over-rated.” Apparently, that’s the new elite-chic as related to the First Amendment. Vigilance…

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