The whole McCain-Feingold issue tears my little mind apart. Philosophically, I agree with McFeingold. The law has the best intentions — to remove the undue influence that moneyed interests can have on our electoral process. The fact is that concentrations of wealth have a distortive effect on the democratic process.
Unfortunately, I’m not sure that we can do much about that, and still leave the First Amendment unscathed. No matter what brilliant ideas we come up with, it just creates a black market in campaign funds. You wind up with issue ads, bundling of donations, and any other manner of evading even a well-written law.
Therefore, while I hate the result in Federal Election Commission v. Wisconsin Right to Life, 06-969, and McCain v. Wisconsin Right to Life, 06-970, I do love the reasoning — especially this lovely diamond that Chief Justice Roberts gives us.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
I used to be a huge campaign finance reform wonk. I wrote a 50 page paper on it in grad school, and came up with some pretty convoluted, and I must admit, intellectually dishonest results-oriented arguments. As I have gotten older, I’ve argued time and again that if we want to protect Free Speech, we need to protect it with as few exceptions as possible.
I do agree that wealth-distortion in the electoral process is a problem that must be solved. However, I think the greater problem is how wealth distorts the very fabric of society. I’d be more comfortable with economic policies to level the playing field in general. Therefore, I must break with my idol, Russ Feingold, and side with Roberts on this one.
That being said, lets see how consistent Roberts is when someone uses those words against him. His whole “the tie goes to the speaker” philosophy seems conspicuously absent in the Bong Hits for Jesus case… doesn’t it?
