Friday, January 22, 2010

The Supreme Court Overturns McCain-Feingold Campaign Funding Laws


Congress passed the “Bipartisan Campaign Reform Act of 2002” commonly known as the McCain-Feingold Act. In part, it prohibited national political parties from raising or spending funds that violate federal spending limits, even for state and local races or issue discussion.

It also prohibited broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibited any such ad paid for by a corporation, including non-profit corporations.

And Now…

On January 20, 2010, in a 5-4 decision, the U.S. Supreme Court struck down large portions of the McCain-Feingold campaign finance law, especially those aspects of the law that imposed restrictions on corporate spending on political issues. Essentially the Supreme Court said that, “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”

Justice Kennedy, writing for the majority, wrote, "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 also wrote that, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

So What?

This decision means that the United States has taken a small step back to actually obeying the Constitution. The First Amendment of the Constitution protects free-speech rights, and the McCain-Feingold law blatantly violated it. It shocked me at the time that it even passed Congress and that President Bush “reluctantly” signed it into law. After all, the President and everyone in Congress take an oath to uphold the Constitution.

But Didn’t the Law Prevent all those Evil Corporations from Influencing Elections?

That was certainly the intention, and I presume McCain and Feingold and Bush and the members of Congress who voted for it were sincere in their beliefs. Sincere or not, their oath prohibits them from violating the Constitution.

Corporations consist of individuals and those individuals separately or together have free-speech rights that are constitutionally protected. And that should be the end of the argument.

There are a few Subtleties Here

Setting aside the constitutional arguments for a moment, let’s look at the thinking behind such a law. There are two parts to this thinking. The first is that Congress can violate peaceful free speech for the good of the people. How kind of them. They violate our freedoms to protect us, but the main purpose of government is to protect our freedoms. Anyone see a contradiction here?

The second subtlety is a hidden assumption that we citizens are to be treated as children, and thus prevented from being exposed to what corporations have to say about candidates or issues. This is called paternalism. Do you want Congress to be your Daddy? And this is from politicians who are legally allowed to listen to thousands of lobbyists. So politicians can be lobbied but we unenlightened citizens cannot.

The Bottom Line

Adults are responsible for their own lives and decisions, and it is not up to Congress to protect us from what others have to say. Our politicians are not God, and it is time that they stopped treating us as their children.

The only sad part of this is that there were four Justices who wanted to uphold this law. Maybe they were reading a different Constitution than the one I carry around.

Tim Farage is a Senior Lecturer in the Computer Science Department at The University of Texas at Dallas. You are welcome to comment upon this blog entry and/or to contact him at


Albert Brenner said...

From a strict constructionist point of view, the Supreme Court did the right thing in striking down the McCain-Feingold campaign contribution limits. Free speech is free speech - no ifs, ands, or buts.

One thing should worry us about this whole issue, though, and it is not paternalism - it is equality. The tension between freedom and equality is one that runs throughout the political philosophy of democracies. It is embodied in our own Constitution. We, as a people, are free to do many things, but we are not free to infringe on the rights of others, even if we all get together to decide to do so (as we have done from time to time).

Effective democracies require a minimum level of equality to function. Large inequalities may not only impede democratic processes, they may threaten the very social fabric that democratic societies rely upon.

All this being said, I do not think the motive behind the McCain-Feingold campaign contribution restrictions was a paternalistic one - as Mr. Farage seems to think. It was an attempt to ensure a certain level of equality among those participating in the democratic process. Now that the old-time equal access to the media requirements are no longer in place, how do I, as a citizen, get access to the public forum when I do not have the economic resources of a large corporation or union? True, there are alternatives such as this blog, but when it comes to commercial radio and TV, I am at an enormous disadvantage compared to GE or the UAW.

I think the Court was right in their decision, but I am gravely concerned about its consequences and think it may be time to restore the FCC's former equal access provisions. In the end, we cannot sustain liberty without some reasonable guarantees of equality - and we must do this thoughtfully with a due regard to the principles of our democracy and unfettered from a literal interpretation of the Constitution. It is an imperfect document. Just ask any African-american whose ancestors were brought here against their will.

Tim Farage said...

Bert Brenner makes a number of good points which I pretty much agree with. And I certainly am concerned with the influence that those with large sums of money (mainly large corporations) have over Congress. But I believe that the problem is with corrupt Congressman that can be bought out. And I don't think that passing additional laws to try to mitigate this inflence will actually work. I have not seen any evidence that McCain-Fiengold was able to reign in corporate influence.

What would work? How about taking a step toward a direct democracy? Let's keep the Senate pretty much as is, but eliminate the House of Representatives, and "replace" it with the direct vote of the people. So every proposed law, budgetary item, etc., would come before the people to vote upon. If both a majority of the Senate and the people vote for an item, it becomes law.

Of course, this is not likely to happen anytime soon, but I think it is the best long-term answer to many of the problems discussed above.

For this to happen the Constitution would have to be amended, and while we're at it, it is time for it to be updated as well. (We can start with eliminating the amendment that allows for an income tax, but that's another story).

Even in a direct democracy, only laws allowed by the Constitution could be passed. Even a vote of the people could not eliminate individuals' free speech rights or freedom of religion, for instance.

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