The Supreme Court Overturns McCain-Feingold Campaign Funding Laws

Background

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 tfarage@hotmail.com.