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September 13, 2006
Yes, Russell, There Really Is A 1st Amendment Problem In The BCRA

In an editorial in yesterday's Examiner, former Federal Elections Commissioner Bradley Smith demolishes a recent assertion by Senator Russ Feingold that his Bipartisan Campaign Reform Act does not trample on First Amendment rights. Smith, who had a front-row seat to the implementation of McCain-Feingold, assures him that telling people when they can and cannot publicly criticize politicians is an egregious limitation on free speech:

Sen. Russ Feingold, D-Wis., takes issue with The Examiner’s editorial criticism of the McCain-Feingold bill and its “ban” on certain broadcast ads. The indignant senator responds that the law “doesn’t ban or censor any speech.”

Feingold’s position is disingenuous. For just a few sentences after telling us the law “doesn’t ban or censor any speech,” he tells us that McCain-Feingold was necessary to prevent some voices from being “drowned out” by others. As McCain-Feingold does nothing to affirmatively create or encourage speech — it offers no subsidies or platform for political speech — the only way it can prevent anyone’s voice from being “drowned out” is through the suppression of other speech — and that is indeed what McCain-Feingold does, as the senator must know. ...

Sen. Feingold can say what he wants, but he cannot deny that the explicit purpose of McCain-Feingold was to reduce the political speech of American citizens. After four years, what have we gained for surrendering this freedom? Is Congress less corrupt? Less controlled by special interests? Is public policy better? Are campaigns more focused on issues? What tangible benefit has been gained? I submit that the answer is none.

For most civil libertarians, the notion that the government should determine which political speech has more value than others is a giant step on the way to totalitarianism. Feingold says that some speech would swamp out other speech, but that's a determination for a free market in speech to make. The blogosphere erupted as a reaction to market impediments to speech, and now features the most open political debate in American history.

This is at the root of our analysis of the BCRA as an incumbency protection racket. Our nation was founded on the principle that those in power should be held to great scrutiny. The BCRA stands that principle on its head by forbidding a range of criticisms against politicians just when that scrutiny has the most effect: in the 60 days prior to an election to either uphold or replace them. Without being able to offer specific critiques, the ability for citizens to speak out in an effective manner against incumbents almost guarantees their re-election.

As Smith reports, Feingold's answer to this problem is to advise people to form political action committees to allow them to speak out. I must have missed the part of the First Amendment that required people to register with the IRS in order to have free political speech. In an era where PACs have allowed candidates to avoid responsibility for electoral messaging, John McCain and Russ Feingold want to see more of these "speech shelters" and less actual grassroots campaigning.

Smith has delivered an indictment on Feingold's violations of the Constitution. With any luck, Wisconsin voters will provide the conviction.

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Posted by Ed Morrissey at September 13, 2006 6:12 AM

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Tracked on September 13, 2006 8:27 AM


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