Free To Scuttle from Loophole To Loophole

The Supreme Court has opined on campaign finance reform, and Mickey Kaus fails to reassure me:

Why am I not wildly upset by the Supreme Court's surprise opinion upholding virtually all of the McCain-Feingold law? Because the law turned out to not be as restrictive of speech as most people, including most of its editorial-page supporters, think it is: It doesn't prevent rich (and non-rich) individuals from banding together to spend as much money as they want on "independent" last-minute issue" ads that criticize or praise candidates by name--something that I'd argue is their right. It only bans them if they incorporate. ... I do think they should be able to incorporate (as non-profits) and enjoy the benefits of limited liability without giving up their speech rights. But it's not the end of the world if they can't. We'll soon see lots of unincorporated non-profits (yes, they can exist) springing up as vehicles for independent political advertising.

Against this we have the dissent by Justice Thomas, as excerpted by David Cohen:

It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as "circumventing" the law's prohibition. Hence, speech regulation will again expand to cover new forms of "circumvention," only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this neverending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.

Having established and reinforced the concept that Congress can regulate political speech for the purpose of avoiding the appearance of corruption, the logic of the Court seems to point to a day when Congress will vote the level of funding for elections, and the rest of us will be asked to remain respectfully silent.

MORE: Linda Greenhouse of the NY Times; excerpts from the decision; Glen Justice of the NY Times; the WaPo.

MORE: Rick Hasen, author of the "Election Law" blog, has thoughts The Big Picture and 527 Organizatons: The Next Big Question. He also pitches us to Howard Bashman's round-up of reaction.

And I will exercise my evidently precarious free-speech rights to excerpt this:

"The notion that the government can tell an organization like the ACLU when and how it should address important civil liberties issues is a form of censorship masquerading as campaign finance reform," ACLU Executive Director Anthony D. Romero said in a statement reacting to the ruling.

And I am in complete agreement with Justice Scalia as it relates to this decision endorsing the Incumbent Protection Act:

The court explained itself by saying that Congress is the best institution for sorting out election rules and for balancing the importance of free speech against the need for reform. But that theory was also hotly debated yesterday.

To critics of the ruling, including dissenting Justice Antonin Scalia, giving congressional incumbents a virtually free hand to set the rules of elections is like letting the reigning Scrabble champion rewrite the dictionary.

The legislation "prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice," Scalia wrote, namely, "national political parties and corporations, both of the commercial and the not-for-profit sort." In his typically tart way, Scalia noted that the Supreme Court has recently protected the free speech rights of tobacco advertisers and Internet pornographers -- but has now limited the rights of corporations and labor unions to criticize elected officials in television ads.

I may just re-print the whole WaPo story. More excerpts:

Critics also noted that the major television outlets are owned not by disinterested charities but by major corporations: Disney owns ABC, General Electric owns NBC, Viacom owns CBS, Time Warner owns CNN. And so on.

These conglomerates spend millions in political contributions to influence legislation, but whatever they decide is news will be all over the airwaves until Election Day," LaPierre said. "Somehow they are pure, while AARP or the NRA is not."

Note - right here we need an angry quote about big media consolidation. Any luck? Oh, well. Continuing:

This analysis seemed overheated to those who saw yesterday's ruling as a big step forward for honest and open politics -- and a lot of people felt that way.

"The law does nothing to prohibit any ads," said Colby College professor Anthony Corrado, an authority on campaign finance laws. "What the law says is you can air ads solely devoted to discussion of an issue -- without mentioning a federal candidate. But if you are broadcasting an ad within 60 days of the election" -- the window is 30 days in the case of primaries -- "and the ad features or names a federal candidate, then it has to be paid for with money subject to federal election laws. You can't use corporate or labor union money."

AND MORE: Let's link to the NY Times Victory Dance. The next step they advocate is the Presidential Funding Act of 2003. That is a bill sponsored by the usual suspects, including my very own Chris Shays. Here is an eye-popping triumph of the little guy, tossed in to pick up Dem support:

Increases from 1:1 to 4:1 the public funds match of the first $250 of an individual's total contribution to a primary candidate.

Comments

[Cecil Turner]

I'm very interested in this topic, but almost totally ignorant. ISTM one of the main effects of this is going to be strengthening news media impact in the days leading up to an election. And encouraging performances like the recent one from the LATimes. Although ritual suicide is probably not warranted, this looks like a really bad decision. And Justice Thomas appeared to have the most level-headed approach.