Campaign Law Set for Big Test

December 3, 2002 8:30 AM

McCain-Feingold doomed (NYT reg req) The law enforcing the soft money ban goes to court tomorrow. Opponents of the law will be led by Kenneth Starr (!), while the defenders of the law will eventually be led by Bush's solicitor general, Theodore Olson, the guy who argued the case that made George W. Bush president. Gee, that sounds fair --- everyone's an arch conservative. This law is toast. Back to the trough!
posted by fungible (28 comments total)

So it's your contention, fungible, that attorneys should be selected by their political qualifications? That's ... interesting. In criminal cases prosecuted by a Democratic district attorney, would you argue that the defendants must choose a Republican defense lawyer? Should, for that matter, Democrats never choose Republican attorneys to represent them? If you disagreed politically with a lawyer during a political campaign, would you then refuse to hire him even if he were acknowledged as the best lawyer in town to argue your case?

Certainly McCain-Feingold was never an easy sell constitutionally; even its supporters and drafters acknowledge that. The question of constitutionality in this case is a very difficult one: should we be able to legislate free speech, especially in the political zone? If we do so, what are the risks? Both political sides (liberal and conservative) are represented on both sides of the issue. For some it may be concern over their direct political interests, for others it may be a measure of principle. But McCain-Feingold was always destined to be the kind of compromise that made everyone unhappy.
posted by dhartung at 8:41 AM on December 3, 2002

From the Article:

Mr. Olson, a conservative Republican, successfully argued Bush v. Gore, the Supreme Court case that made George W. Bush president.

That sounds fair enough.

Immediately after President Bush signed the measure in March, dozens of political parties and interest groups began trekking to the courthouse, arguing that the law trespasses into "constitutionally forbidden territory" and would chill political speech. More than 80 plaintiffs have objected, including the Republican National Committee, the National Rifle Association, the A.F.L.-C.I.O., the American Civil Liberties Union, the California Democratic Party and Senator Mitch McConnell, Republican of Kentucky.

The ACLU is also metioned as an opponent of the law. I've found the ACLU a nuisance and a bit extreme at times, but I've never disagreed with them 100% about an issue. Until now.
posted by Ufez Jones at 8:41 AM on December 3, 2002

Nowhere in the article you link does it say the law is toast, fungible. In fact, the article points out that three Supreme Court justices have said they disagree with the 1976 Buckley decision that rejected limits on campaign spending as unconstitional, "and three others have written that they would be willing to reconsider" the issues in that case.

Can you explain where you see the article noting that McCain-Feingold is "doomed?"
posted by mediareport at 8:44 AM on December 3, 2002

Fear of McCain–Feingold from today's Washington Post
posted by Steve_at_Linnwood at 8:47 AM on December 3, 2002

I hardly see what's unfair about any of the above? Both are apparently highly respected attorneys in conservative circles, both are simply at the helm of large non-partisan teams, who cares what they argued in the past except that it shows that people respect their legal expertise in large scale, politically charged cases?
posted by Pollomacho at 8:47 AM on December 3, 2002

The sole purpose of the ACLU is to defend the Bill of Rights, and obviously this is a case where the Bill of Rights needs to be defended. My disagreement is that the ACLU isn't arguing that the right to free speech of the majority of the American public is damaged by a lack of restrictions on campaign finance.

I'm amazed at the logic of Freepers on a regular basis, but the CFR argument takes the cake for me... how is it that thousands of conservative-leaning voters are violently opposed to a law that limits their campaign contributions to... let's see... more money than they'll ever donate to a campaign in their life?

I mean honestly, how many people do you know who have actually given $1,000 to a political campaign and then said "god damn it, my free speech sure is hindering my ability to give more!" It's like the Estate Tax argument- just on some ridiculous principle, the majority is needlessly whining about restrictions on a policy that clearly and blatantly benefits only those with vastly higher liquid assets than the rest of the country.

For any court to rule that money is speech is to have the government openly decree that more money = more rights. It may be that way already, but I sure as hell don't need to have it put on paper for me.

Ufez, the ACLU is on the opposition side because of the honest truth: this bill is fundamentally flawed. It has loopholes you can drive a truck through, and it's broken apart because of concessions made to get it passed in the first place. The only true CFR will be a Supreme Court ruling that specifically limits or bans all political donations across the board... I think the point of fungible's FPP comment is that it appears as though the Court is looking for a way to do exactly the opposite.
posted by XQUZYPHYR at 8:56 AM on December 3, 2002

I'm going to settle myself offshore, to avoid taxes, so I can pay a percentage of that back to Congress so that I can continue to not pay taxes by settling offshore, while maintaining my house in Maryland. Maybe a postwar in New York. A small cottage in Aspen. Give and you shall recieve.

I am a true patriot.
posted by four panels at 9:01 AM on December 3, 2002

My disagreement is that the ACLU isn't arguing that the right to free speech of the majority of the American public is damaged by a lack of restrictions on campaign finance.

Well stated, XQetc.

The only true CFR will be a Supreme Court ruling that specifically limits or bans all political donations across the board...

Can you expand on that a bit? Not agreeing or disagreeing, just want a little more info from you. (likelihood, how it would work, citizens no longer being able to donate at all?, etc.)
posted by Ufez Jones at 9:01 AM on December 3, 2002

The question of constitutionality in this case is a very difficult one: should we be able to legislate free speech, especially in the political zone?

Isn't the deeper question whether spending money is equivalent to free speech in the first place, dhartung? A rethink of that equation is exactly what many folks see coming, based on the problems we've seen since the Court last dealt with it.

But McCain-Feingold was always destined to be the kind of compromise that made everyone unhappy.

So was Buckley 1976, really, which upheld some limits and threw out others in a patchwork attempt to find a compromise that kept some some of the original law intact. Neither campaign finance types nor the lawyers for the plaintiffs were particularly happy about it:

[the campaign spending law] itself was, in many respects, irrational and incomplete, and the statutory wreckage left by the Buckley decision only rendered it more illogical and incoherent. In short, what exists today -- and what governs the financial aspects of political activity at the Federal level -- was something that neither the FECA’s drafters and supporters nor the Buckley plaintiffs would have preferred as an outcome.
posted by mediareport at 9:09 AM on December 3, 2002

XQZPHYR: (The) right to free speech of the majority of the American public is damaged by a lack of restrictions on campaign finance.

Your argument, then, is that some people, by virtue of their wealth, get to speak more loudly than others? Thus, it is governments proper role to muffle the voices of the strong so the weak can be heard?

Do I understand? Harrison Bergeron is my favorite story.
posted by trharlan at 9:30 AM on December 3, 2002

trharlan, I think perhaps you ought to read his entire post.

For any court to rule that money is speech is to have the government openly decree that more money = more rights

The sentence you quoted refered to a possible ACLU argument, the merits of which it's fairly obvious he doesn't endorse.
posted by Yelling At Nothing at 9:37 AM on December 3, 2002

Cute but flawed parallel, trharlan. There's nothing lowest-common-denominator about campaign finance reform; it's an attempt to ensure that a powerful minority voice doesn't drown out the democratic majority. Nothing wrong with that, surely?
posted by ook at 9:40 AM on December 3, 2002

isn't it odd how sometimes corporations want to be treated as individuals, and get all the rights attendant to being an individual, and then other times they don't want to be treated as individuals at all? to me, it seems that before any progress can be made, one must assign them a specific role as individuals or as some other kind of entity.

if they're individuals, let them be treated as such across the board. if not, then not. but once the issue is decided, then we can make accurate assessments of where rights fall on issues like this. until then, they're free to play a sort of shell game where they can take either position depending on which one will benefit them the most.
posted by callicles at 9:48 AM on December 3, 2002

Thus, it is governments proper role to muffle the voices of the strong so the weak can be heard?

No it the the role of government to represent the people not just those who can speak loudest. Harrison Bergeron is as preposterous as your insinuation that life should operate as a simple equation: might = right. Those with the most might, and in today's world that means money, don't necessarily look out for anyone els - they don't have to. That's what government is for - making sure that I don't go and kill you, or abridge your rights - and so that our rights are not abridged by any entity. That's what government is for. This is a social contract folks, no one gets a free lunch, and we all share the benefits.

callicles is right on the money, corporations are classified as individuals, but with the added benefit of eternal life. This allows the corporation to amass large amounts of capital which built our modern world. This large amount of capital creates the might, and more often than naught, like the school-yard bully, get's its way.

I think the only sane solution is to use our publicly owned airways, radio, tv, etc., and allow candidates equal time for commercials during the election cycle - for free. Then no one can claim that their 1st Amendment right is infringed, since the barrier to entry would be low. How this would become enacted, I don't know - the S/N ratio would drop to a perilous level if it was not regulated in some fashion.
posted by plemeljr at 10:09 AM on December 3, 2002

I think the only sane solution is to use our publicly owned airways, radio, tv, etc., and allow candidates equal time for commercials during the election cycle - for free.

Sadly, that is not the most sane solution, although I agree with your sentiments. The most sane solution would be for the voting public to base their choices on personal research on the candidates and not on the number of times they heard the candidates' names, and on the number of American flags they saw the candidates' faces associated with.

This problem is the elephant in the living-room of McCain-Feingold, and the irony of the political alignments it creates would confound an Afghani warlord. This bill, which is an out-and-out acknowledgement that the voting public is easily manipulated, finds its strongest support in... the voting public. It's aligned the ACLU and the NRA. Its sentiments have earned the public support and private disdain of both parties.

I don't think campaign-finance reform, in any incarnation, is capable of greatly improving our democratic process. I'd greatly prefer legislation making election day a national holiday, simplifying voter registration even more, and mandating extensive spending to replace the limited number of voting booths with a much greater number of faster, easier-to-use computerized voting kiosks in malls, post-offices, banks, etc.
posted by gsteff at 10:38 AM on December 3, 2002

I think callicles is hitting upon something here.

Most abuse of money=power/louder voice happens at the corporate level.

Let's take a look back at the foundations of corporation=individual and see how flawed that premise is today.

Changing corporation=individual would go a long way towards cleaning up campaign finance.

I don't think anyone believes we should be denied the ability to donate $5 to the candidate of our choice but few would agree that corporations should have the stranglehold they currently possess over the legislative process .
posted by nofundy at 10:38 AM on December 3, 2002

“Your argument, then, is that some people, by virtue of their wealth, get to speak more loudly than others? Thus, it is governments proper role to muffle the voices of the strong so the weak can be heard?”

I love it. Here we see ideology bare-chested and snarling. The wealthy are strong! Bow before your master Mammon!

Bergeron is a good story about a government nonchalantly oppressing its citizens or allowing to be its citizens to be oppressed. Sort of like a government nonchantly ignoring its citizens or allowing them to be ignored.

Golly, libertarianism doesn’t have anything to do with cash money! Who knew!? Unless that libertarian is some believer in a flavor totalitarianism in which a true phoenix rises of the ashes of society and everyone else becomes his subject.
posted by raaka at 10:41 AM on December 3, 2002

allow candidates equal time for commercials during the election cycle - for free

Ugh. After recently being subjected to a laughably moronic and content-less U.S. Senate campaign, giving politicians free time to run even more of their garbage is at the absolute bottom of my list of campaign reform wants. Giving them free *debate* time, with a rotating pool of journalists as panelists and the campaigns not able to restrict the format, would be a much more useful strategy.
posted by mediareport at 10:49 AM on December 3, 2002

I think the only sane solution is to use our publicly owned airways, radio, tv, etc., and allow candidates equal time for commercials during the election cycle - for free.

Excellent! I'll form a new branch of the Gremloids and get on tv for free...

Vote for me! I've been here for 15 years running Xenophobe's House of Crap, at 1000 Main Street! Xenophobe's House of Crap, where the customer is king and where low prices rule! I've been setting prices that are so low they're insane for 15 years at Xenophobe's House of Crap, and now I want to bring the same zany antics to DC!

Vote for me, Honest Xenophobe, who wants to put you in a new car this year!

Vote for me, Xenophobe the Holy, because the following people are gay homosexuals:...

Vote for me, Reichsfuhrer Xenophobe, and lead the white race to its rightful supremacy over the mud people!
posted by ROU_Xenophobe at 11:06 AM on December 3, 2002

I think gsteff is right about most of his ideas for fixing the election system here, except that, to me, the elephant in the living room is the fact that our government is just one big puppet for corporations and big-money interest groups. And everyone knows it. And the closest we've ever come to trying to put a stop to it is McCain-Feingold. (Ever hear of anyone pushing a bill to make election day a holiday? Not gonna happen.)

And after years of trying to put it through Congress, and finally making it, MC-F is a goner. What makes me think that? A mostly conservative Supreme Court (oh, they're "willing to reconsider" the issues? What a crock.), a defense led by Bush's friends. (Don't bullshit me about the ethics of lawyers, for chrissakes.) Why do you think Bush signed the bill in the first place? Because he was under pressure from the financial scandals, and because he knew he could kill it once it went to trial and the pressure was off. He's holding all the cards.

Look, I know there are democrats pushing to reopen the loophole as well. But the repubs get the most soft money, and they've been trying to kill this bill for years. I'd bet most of the contentious freedom-of-speech-limiting amendments were introduced just so they could kill this sucker in court later on.

The whole game's fucking rigged. But I probably don't have to tell you that.
posted by fungible at 12:03 PM on December 3, 2002

The question of constitutionality in this case is a very difficult one: should we be able to legislate free speech, especially in the political zone?

I would think we should be able to legislate bribery. The only thing that makes this more "difficult" is that the secondary beneficiaries of this scam are the politicians that get to write (and loophole) laws.

And a bench of Supreme Court justices being politicized? Voting with their party? It could never happen here.
posted by victors at 12:26 PM on December 3, 2002

I couldn't agree more that the game is rigged, fungible. What seemed over-the-top to me was the spin you put on an article that didn't seem to contain what you implied it did. Speaking only for myself, front page posts that try to present information more neutrally are preferable. Try leaving the opinion for the comments inside.
posted by mediareport at 12:43 PM on December 3, 2002

If you want an easy way to keep up with this (and all S.C. cases), you may want to check out the excellent SCOTUSblog.

The whole game's fucking rigged

40 foot flaming letters in every city in the country. Every single one of them.
posted by Ufez Jones at 12:52 PM on December 3, 2002

D'oh! The link to the SCOTUSblog is here.
posted by Ufez Jones at 12:53 PM on December 3, 2002

mediareport: OK, you're right. Slight misuse of the headline concept. Sorry.

Although, to me, the article (considering the NYT's liberal bias) was basically trying to say that anyway. I just put it more bluntly. Still, I should have said "In my opinion."
posted by fungible at 2:27 PM on December 3, 2002

Still, I should have said "In my opinion."

Guess we'll disagree there; I don't think we should include opinionated statements at all in political posts (unless it's quoted material, say). Keeping the spin inside the thread just seems more respectful of the varied politics of the larger community here, and seems more likely to generate thoughtful comments in return. If you want to share a strong opinion about a post - even your own - inside seems to be the best place to do it.

In my opinion, of course. ;)
posted by mediareport at 3:28 PM on December 3, 2002

But the repubs get the most soft money, and they've been trying to kill this bill for years.

Actually, Democrats get a much higher percentage of their donations as soft money than the Republicans and the M-F bill hurts the Democrats more than the Republicans.
posted by wrffr at 6:56 PM on December 3, 2002

Might it perhaps not be more useful and constitutionally compliant to, rather than eliminate one's ability to spend obscene amounts of money advertising for a candidate, remove the root causes which cause corporations and special interest groups to spend those obscene amounts of money in the first place? They are attempting to curry favour because they know that those politicians they assist will reciprocate to the best of their ability. If one removes the ability of those politicians to reciprocate, it seems to me that the desire of those corporations and special interest groups to influence politics in their favour will evaporate. Does anyone have any specific suggestions which they feel will best accomplish this goal?
posted by Pseudoephedrine at 3:56 AM on December 4, 2002