Campaign Finance "Reform Law" Upheld: MCCONNELL v. FEC, the ruling concerning the McCain/Feingold campaign finance was handed down today. It was broader than expected -- except for one provision, the only thing struck down was the total ban on donations by minors. The biggest surprise was that the "issue ad" provision regarding unions and corporations (including nonprofits, such as the ACLU) not being allowed to broadcast ads sixty days before a general election (or thirty days before a primary/caucus election) that refers to a candidate (see here on how this will affect the upcoming campaign season). The only way around this is via a cumbersome system of forming a PAC (political action committee) for such purposes. The sentiment was that this part of the law was court bait, which might have been a major reason some voted for it.

The dissents (technically partial dissents) in various ways do a good job of explaining why the 5-4 (in most aspects) decision was misguided. The case showed how on some issues it is the more conservative justices that are more libertarian. A primary concern was how unions and corporations are treated like second class citizens in regard to speech rights. The inclusion of unions should be a warning sign to liberals, even if the inclusion of nonprofits did not. Likewise, given that the importance of money to First Amendment rights (e.g. rejection of laws that totally ban criminals from profiting from telling their stories or issues related to religious aid cases) is accepted in other contexts, cheapening speech rights because money is involved should not be so cavalierly done. Speech is not "free" in some sense; it costs money. Finally, one selectively narrowly tailors limits to speech and association rights to one's peril.

[Kenneth Starr, a lead advocate against the law, took part in an online chat, which is posted here. He reminds us that the law basically shifts money away from parties and unions/corporations to interest groups (and the press), which are not regulated as much in various ways. Thus, money continues to be a factor, but money controlled by more "unaccountable and shadowy new interest groups." Also, some "as applied" challenges are yet to come, so much more campaign finance law is yet to be made! Cheery news.]

Political speech is at the heart of the First Amendment. Why is it limited here? The primary concern is supposedly "corruption," though the dissents aptly argue that not only is the interest not targeted in the required narrow way, the term is too broadly defined. Speech that assists "access" or leads to some degree of "favor" might be troubling, but attempting to limit it is more troubling. After all, racist speech, violent speech, misleading advocacy, and so forth all lead to some negative results. We still go out of our way not to limit it, including donations to such organizations that promote it, or advertising that furthers it. Line drawing involving contributions to individuals is hard enough. Try to limit party expenditures, advertising, and so forth, and you really are in trouble.

Money doesn't like a vacuum. The newest campaign finance law attempted to close loopholes left up in an early one, and so forth. Putting aside such cynicism, regulation can be defended. For instance, requiring Dean to raise money from a broad base of Internet donors has its benefits. All the same, the right of free expression is broadly protected in this country, so much that the Constitution speaks of "no law." Something is wrong when a law this broad, a law that brings under its terms a whole slew of First Amendment interests, is treated more leniently than a law that bars burning crosses on private property. The law was rightly treated suspiciously because singling out one point of view is dangerous. A bit more suspicion should have been applied here in interpreting another law that facially looked like a good idea at the time.

[This last point is made clear by concern by a key supporter "that the Court reached the decision too easily." The author discusses cites an article by Brad Smith in the 2002-2003 Cato Supreme Court Review against such regulation. Smith also wrote a book on the issue that is well worth reading. The link supplied is useful as well in that it supplies links to key documents related to the case. It also is well worth checking out for its usual discussion on various election law issues.]