Freedom of Speech Now Illegal Pay no attention to the Firgt Amendment, says High Court
Roane, Spencer
Freedom of Speech Now Illegal Pay no attention to First Amendment, says High Court. BY "SPENCER ROANE" ON'T LOOK NOW, BUT THE SUPREME COURT and Congress have just snatched away some of the...
...This is not a matter that can be limited to lawyers and constitutional scholars...
...But they do not...
...Dissenting, Justice Clarence Thomas slammed the court for upholding "the most significant abridgment of the freedoms of speech and association since the Civil War...
...they simply drive up an individual candidate's negative polling numbers...
...By choking off funding to political parties, BCRA muffles their attempts to reach out to the electorate...
...The justices who adhere to the tenets of the Anti-Constitution cannot possibly believe in the rule of law...
...They get free media exposure...
...It is an "electioneering communication" if it merely mentions a candidate or shows his image...
...The broadcast need not advocate the election or defeat of the candidate...
...This is a matter of power...
...It is vicious...
...Senator John McCain (R-Ariz...
...The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press"— Justice Clarence Thomas...
...By increments, each precedent moves a little farther away from the earlier decisions it interprets, and farther yet from the actual Constitution...
...The Anti-Constitution declares sodomy and abortion to be constitutional rights...
...And the Supreme Court thinks that's just swell—no constitutional free speech problem there...
...The McCain-Feingold "Bipartisan Campaign Reform Act" criminalizes political speech in connection with federal and even state elections...
...One might think that, in a profoundly important constitutional case involving freedom of political speech, the text and purpose of the First Amendment might make an appearance...
...3) making any "public communication" that refers to a federal candidate and "promotes," "supports," "attacks," 12 THE AMERICAN SPECTATOR FEBRUARY 2004 or "opposes" a federal candidate...
...For more than 70 years, liberals have been the party of state power...
...bewailed the fact that he came home one night and saw four television commercials, "and every one of them blasting me...
...As recently as 1996 the court decided that It should be said that Justices Rehnquist, Scalia and Thomas can generally be counted on to try to decide cases according to real constitutional values...
...The real Constitution says nothing about issues such as abortion and homosexual sodomy, and the Founding Fathers would have been stunned that anyone (much less the Supreme Court) would ever think that it did...
...Under the guise of "campaign finance reform," BCRA also severely limits the ability of all of us—individuals, corporations, unions, non-profit groups—to make our voices heard by donating to the political parties whose positions we wish to support...
...Without free speech, free elections, and responsive government, only three options remain: illegal, under-the-table corruption...
...If free speech and free elections go, everything goes...
...Under the Anti-Constitution, many lower federal courts hold that there is no individual right to keep and bear arms, and that federal, state, and local governments can impose restrictions and bans on gun ownership...
...This balancing may come as a shock to non-lawyers, who may think that "no law" means "no law," and that the government can never have any legitimate interest in outlawing free speech about issues or candidates...
...Under the Anti-Constitution, political speech that is critical of government officials is declared to be "corruption," and Congress may punish offenders with long prison terms...
...In The Federalist, Alexander Hamilton examined the dangers that might arise from "confiding the ultimate right of regulating its own elections" to the federal government itself...
...Augustus took extraordinary pains to preserve the outward forms of republican government, while in fact assuming the powers of a dictator...
...I guess Hamilton had never heard of McCain, Feingold, Jeffords, Boxer—oh, excuse me, Your Honors, I meant to say "Those Whose Names Cannot Be Spoken...
...The reasoning on display in that opinion shows the debased state of the court's First Amendment jurisprudence...
...But he had a far more conclusive retort: The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people....[T]hat so fundamental a privilege, in a country situated and enlightened as this is, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible...
...A Russian aristocrat under the czars described the political system in that country as "tyranny, tempered by assassination...
...And the list goes on...
...But the real reason is simpler, and far less creditable...
...The law's supporters frankly admitted that its purpose is to silence speech that is critical of them...
...Senator Dick Durbin (D-Ill...
...Incumbent officeholders already have enormous advantages over challengers...
...The rule of law must be a rule...
...Bringing the court back into line, and reversing this congressional subversion of our fundamental freedoms, must be at the top of any conservative agenda...
...Boxer was incensed that "these so-called issue ads are not regulated at all and mention candidates by name...
...That law makes it a felony for a corporation, labor union, or non-profit advocacy group to criticize—or even mention—a member of Congress in broadcast ads 60 days before a federal election...
...Those who seek to expand and consolidate governmental power against the citizenry will naturally favor heavy restrictions, and even prohibitions, on the right to organize politically in a well-funded way and to engage in effective political advocacy...
...They have a paid staff and a working campaign apparatus already in place...
...Those who favor unlimited, arbitrary state power in the hands of the state and its officeholders cannot abide that vision...
...The opinions are fractured, with a number of dissents and concurrences regarding particular statutory provisions, but in general almost all of BCRA was upheld by a 5-4 vote...
...Entrenched incumbents will make that difficult, but perhaps not impossible...
...Nowhere is there any sense that precious liberties essential to our system of self-government, and rare in the history of nations, are at stake...
...So they emulate Augustus Caesar...
...The opinions by the Supreme Court justices in the McConnell case run to nearly 300 pages, by some counts, the longest in the Supreme Court's history...
...Rather than enforcing our rights, the court "balances" them against what it conceives to be "governmental interests" that can trump our constitutional and political liberties...
...j USTICES SCALIA and Thomas pointed out the seeming absurdity of extending First Amendment protection, as the court has done, to defamation, nude dancing, pornography, flag burning, tobacco advertising, dissemination of illegally intercepted communications, and cross burning, while denying that protection, in Scalia's words, to "the heart of what the First Amendment was meant to protect: the right to criticize the government...
...From now on, as one of these groups said in its brief to the court, such organizations are relegated to a world where politicians must be referred to as "He Whose Name Cannot Be Spoken...
...BCRA and other campaign laws that forbid political speech in order to protect elected officials must be repealed...
...The prose is curiously flat, cramped, bureaucratic, and repetitive...
...for example, complained that independent groups "often run ads that the candidates themselves disapprove of...
...FEBRUARY 2004 THE AMERICAN SPECTATOR 17...
...Political speech—through broadcast ads, print ads, direct mail, and other methods—costs money...
...Nude dancing and cross burning do not endanger those in power...
...The Supreme Court has left those decisions undisturbed...
...They directly attack candidates....It is brutal....It is totally unfair and totally unregulated and vicious...
...Thus, the court in this area, as in others, subverts the Constitution by several easy techniques...
...But broad-based advocacy groups themselves—such as the NRA, the ACLU, the Sierra Club, the U.S...
...or supine acquiescence in arbitrary dictatorship...
...It also severely limits the ability of individuals and organizations to advance their public policy beliefs by supporting the political party of their choice...
...We have an opportunity in the McCainFeingold bill to stop that...
...Under the Anti-Constitution, the federal courts have been engaged in a prolonged and successful campaign to root out the exercise of religion from public life...
...HERE Is an interesting corollary to this judicial implementation of an Anti-Constitution...
...hibitions on speech, let us get a feel for the new electoral landscape by looking at just a few of the soft money "reforms" that were approved by the Supreme Court in McConnell: • National political parties can no longer "solicit, receive, or direct to another person" any soft money...
...Justice Kennedy wrote a lengthy dissent in McConnell, criticizing the court for sacrificing core First Amendment principles...
...was even more blunt, informing Senators that "another good thing about McCain-Feingold" is that these "vicious attacks" will "not be able to come 60 days before your election...
...Just as anti-matter is the polar opposite of real matter, and causes matter to vanish when the two come into contact, so the court has largely implemented an Anti-Constitution that is the opposite of the real Constitution...
...Money, like water, will always find an outlet...
...State and local candidates and officeholders also cannot spend nonregulated money for any public communication that promotes or supports, or attacks or opposes, a candidate for federal office...
...The historical Spencer _Roane was a judge of the Supreme Court of Appeals of Virginia from 1794 to 1822, known for his defense of state sovereignty against judicial usurpations by the federal government...
...The Supreme Court has taken the position for many years that the government has interests that justify suppression of political speech...
...Further, these ads are almost always negative attack ads, and do little to furtherbeneficial debate...
...The situation prior to "reform" was intolerable to Jeffords, since it "has seriously imposed upon us unfairness as far as candidates are concerned who find themselves faced with ads, and other areas of expression, to change the election...
...when your colleagues disregard it in December...
...Apart from afew perfunctory quotes from prior opinions, there is no analysis of the fundamental importance of free political speech in our system of representative government, and no recourse to the history or purpose of the First Amendment's free speech guarantee...
...The principal statute that it amends, the Federal Election Campaign Act of 1971, is dense and convoluted...
...SPENCER ROANE" that "refers to a clearly identified candidate for Federal office," is made within 60 days before a general election or 30 days before a primary election, and is targeted to the electorate in the district or state that the candidate seeks to represent...
...The second are prohibitions on expenditures for issue advocacy and election speech, such as the criminally enforced blackout on advertising by independent groups that mentions a member of Congress during the 60 days before an election...
...In short, these few provisions of BCRA alone cut off most contributions to national parties, dry up funding for essential election activities by state and local parties, prohibit party support for groups which have historically been participants in our public debate, and silence speech by state and local candidates and parties...
...Although earlier court decisions had upheld restrictions on express advocacy, speech about political issues—by corporations, nonprofit groups, or anyone else—has always received full constitutional protection...
...It should be said that Justices Rehnquist, Scalia, and Thomas can generally be counted on to try to decide cases according to real constitutional values, and to preserve the rule of law (while trying to accommodate the court's often errant precedents, which they inherited...
...That power is reserved to the states...
...A majority of the Supreme Court believes it can make up new constitutional rights, and disregard old ones, so long as it has the votes to do so...
...Senator Barbara Boxer (D-Cal...
...Thank God it does...
...A majority of the Supreme Court feels free to disregard the express commands and limitations of the Constitution...
...Impossible for this to happen here, you say...
...Ostensibly, to prevent "corruption," and to promote "accountability" and "disclosure...
...This could not have happened if we had been paying attention and guarding our rights...
...They weren't paid for by his opponents, the Republicans, but by "organizations that most people never heard of" who raise money and "run ads, the most negative ads on television, against politicians...
...k4, "Spencer Roane" is the pseudonym of a partner in a national law firm...
...Justices Rehnquist, Scalia, Kennedy, and Thomas dissented over most portions...
...So when expedited lawsuits were brought to have this gross infringement of our fundamental political liberties declared unconstitutional, what did the Supreme Court do...
...These ads are "disgusting and distasteful and should be rejected," according to the Senator...
...As Justice Scalia observed in his dissent, "The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech...
...Only "hard money" subject to federal limitations may now be raised and spent...
...By express language in the Second Amendment, the real Constitution provides that the right to keep and bear arms shall not be infringed...
...The provisions of BCBA are indeed complex...
...For most of this time, liberalshave dominated the Supreme Court, even when Republican appointees have outnumbered Democratic appointees...
...Why would Congress want to do these things...
...It includes any "broadcast, cable, or satellite communication" "The first instinct of power is the retention of power" Justice Antonin Scalia in his dissent...
...The law they passed for their own protection will make that more difficult, but perhaps not impossible...
...BY "SPENCER ROANE" ON'T LOOK NOW, BUT THE SUPREME COURT and Congress have just snatched away some of the most basic political rights of Americans, including the right to freedom of speech during election campaigns...
...Make up your mind which side you are on...
...The court "balanced" the "governmental interest" in suppressing independent speech (its "corrupting" effect) against the right to engage in it...
...Only the political professionals care...
...The other justices are more or less in favor of the Anti-Constitution, though there is considerable muddle amongst them, notably on the part of Justices Kennedy and O'Connor...
...National, state and local parties are banned from making or directing soft money donations to most tax-exempt organizations that engage in political activity...
...FEBRUARY 2004 THE AMERICAN SPECTATOR 11 FREEDOM OF SPEECH NOW ILLEGAL The most important proscriptions upheld by the court are of two types...
...Any person" who violates this prohibition may be fined and sent to prison for five years...
...FEBRUARY 2004 THE AMERICAN SPECTATOR 13 FREEDOM OF SPEECH NOW ILLEGAL invades the very core of the liberties that this Republic was established to protect...
...Not impossible...
...That is an outrage....McCainFeingold addresses that...
...Thomas concluded: "The press now operates at the whim of Congress...
...Consider: The real Constitution provides for a small federal government with strictly limited, delegated powers...
...Other things being equal, they will have an advantage in direct fundraising...
...Elections are about getting and retaining power...
...On December 10, the Supreme Court held in McConnell v. FEC that almost all of the provisions of BCRA, including flat-out prohibitions of political speech, do not violate the First Amendment...
...Under the Anti-Constitution, the federal government regulates these things comprehensively, and the Supreme Court nullifies state laws of that type with which it disagrees...
...Yet the same Justice Kennedy also authored the infamous Lawrence decision last summer, which created out of thin air a "constitutional right" to engage in homosexual sodomy...
...16 THE AMERICAN SPECTATOR FEBRUARY 2004 "SPENCER ROANE" political parties had a First Amendment right to engage in independent advocacy on behalf of a candidate...
...It's a done deal...
...Congress passes incomprehensible statutes, and the courts review them under abstruse First Amendment precedents...
...Prohibit unions and corporations, and you will see a lot less of that...
...S JUSTICE THOMAS predicted in his dissent, "The chilling endpoint of the ourt's reasoning is not difficult to foresee: outright regulation of the press...
...This legislation will change that...
...But utterance of the words "campaign finance reform" causes eyes to glaze, snores to erupt, and TV remotes to click That is due in part to its mind-numbing complexity...
...The first are bans on soliciting, contributing, receiving, or spending "soft money...
...But now the Supreme Court has given the green light to Congress to squelch independent speech...
...To unseat an incumbent, a challenger will generally have to mobilize far more resources, which is often made possible by aid from national and state political parties...
...They may assume, naively, that the government is supposed to be the instrument of the people, and controlled by the people, rather than be an actor in its own right, with its own interests that justify silencing its critics...
...FEBRUARY 2004 THE AMERICAN SPECTATOR 15 FREEDOM OF SPEECH NOW ILLEGAL The real Constitution protects free exercise of religion from interference by the federal government...
...Beginning with Buckley v. Valeo, decided in 1976, the court has distinguished between political ads which "expressly advocate" the election or defeat of a candidate, and those which discuss issues (and might mention a candidate as well...
...Senator Russ Feingold (D - Wisc...
...The limited tools for doing so—impeachment, jurisdictional withdrawal, and judicial appointments—will make that difficult, but perhaps not impossible...
...The court said it must "examine the degree to which BCRA burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden...
...core political speech...
...In other words, the definition includes almost all electronic campaign speech, and a great deal of speech about legislative and public policy issues in which a member of Congress, or candidate for president, would ordinarily be identified...
...It now appears, in Justice Thomas's words, that the court "intends to abdicate entirely its role" in striking down these congressional attacks on free elections...
...Senator Jim Jeffords (I-Vt...
...On a closer look, there is no absurdity here, but a cold and ruthless logic...
...In Buckley, the Supreme Court struck down that prohibition as a violation of free speech...
...Except under limited circumstances, it is now a federal crime for state and local candidates, officeholders, and political parties to engage in public speech that "attacks" or "supports" candidates for federal office...
...Answering the allegation that such power might be employed "to promote the election of some favourite class of men in exclusion of others," Hamilton thought it "chimerical" to imagine that such a disposition "could ever find its way into the national councils...
...The court's opinion even invited such new intrusions, hinting that "We are under no illusion that BCRA will be the last congressional statement on the matter...
...Nowhere in the 120 pages of labored prose will you find the words: "Congress shall make no law...abridging the freedom of speech...
...News flash for Justice Kennedy: you can't disregard the Constitution in June, and then be "shocked, shocked...
...Taken together, BCRA's restrictions will radically transform the ways in which election campaigns can be conducted in this country...
...2) engaging in voter identification and "get out the vote" activities for any election in which a federal candidate appears on the ballot...
...In the 1980s, a congressionally enacted prohibition against independent expenditures for political speech in connection with presidential campaigns was held by the court to be unconstitutional in FEC v. NCPAC...
...It ignores the text, meaning, and purpose of the Constitution...
...The direct restrictions on speech by independent groups have the same purpose...
...But a wide-open system of free speech and free spending on elections makes those who are in power insecure and vulnerable...
...The Anti-Constitution—that is, the Constitution as construed by the Supreme Court—provides for a central government of essentially unlimited powers, achieved through the court's Commerce Clause decisions and other devices...
...If such money is involved (and normally it would be), state and local parties are prohibited from (1) conducting voter registration activities within 120 days before a regularly scheduled federal election...
...State and local political party organizations are prohibited from using money raised outside the federal regulatory system for activities that might affect federal elections...
...The rule of law requires that the law should be knowable in advance, and not subject to arbitrary change according to a court's whim...
...reminded his colleagues "what the real issue is, and that is elections...
...The "opinion of the court" regarding the soft money bans and the prohibitions on speech in connection with elections was coauthored by Justices Stevens and O'Connor, and joined by Justices Souter, Ginsburg, and Breyer...
...McCain-Feingold "is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not permeate the airwaves," according to Senator Maria Cantwell (D - Wash...
...Voters "don't think much of you when they see the kinds of attack ads that are broadcast on a routine basis," McCain continued...
...When peaceful, lawful means of bringing about political change are shut down, dissent is driven into unlawful channels...
...Those who believe in freedom, an independent citizenry, and control of the government by the private sector will oppose those kinds of restrictions...
...OT ANYMORE...
...The court routinely employs "balancing," and just now has balanced away some of our most fundamental constitutional freedoms...
...The rule of law requires fidelity to the text of the laws until that text is changed through legislation or amendment...
...This is money raised by political parties—legally until now—that is not subject to the federal election regulatory apparatus...
...What cannot survive is free self-government...
...Life goes on and not much changes...
...himself stated that his bill is "a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system...
...What problems will arise, and how Congress will respond, are concerns for another day...
...The Constitution created by the Founders envisioned a strictly limited government, controlled (ideally) by an active, vigilant, independent and self-reliant citizenry, steeped in JudeoChristian values and beliefs, and committed to the rule of law...
...McCain and others who supported this law must be defeated...
...on 50,000 watt clear channel stations from Mexico, or broadcasting from ships in international waters—any place that free speech might still survive outside the politically repressive regime that has now been imposed in the United States of America...
...D URING THE YEARS in which McCain-Feingold was being debated, its congressional supporters were amazingly candid in admitting that the law was aimed at outlawing speech that was critical of them and could therefore influence their elections...
...Although BCRA exempted the media from its prohibitions—this time—"there is no principle of law or logic that would prevent the application of the Court's reasoning in that setting...
...But that assumption would be wrong...
...The Supreme Court must be reined in...
...Instead, the court engages in minute dissection of its prior opinions on campaign finance, while ritualistically invoking "corruption and the appearance of corruption," and "circumvention" of the regulatory system, as grounds for dismantling our basic political freedoms...
...Sen...
...There is little doubt which side many members of Congress are on...
...Instead, it looks to its own precedents, as if those were the fundamental legal texts to be interpreted...
...14 THE AMERICAN SPECTATOR FEBRUARY 2004 "SPENCER ROANE" candidate, as well as those that expressly advocate the candidate's election or defeat...
...By cutting off that aid, BCRA makes it extraordinarily difficult for a challenger to prevail against an entrenched incumbent...
...The Supreme Court, while paying lip service to the Constitution, has been engaged for decades in turning upside down the constitutional principles underlying our Republic...
...Under BCRA, it is now a federal felony for corporations and labor unions to spend their general treasury funds on "electioneering communications...
...T HE couRT—that self-proclaimed guardian of our civil liberties—upheld this naked power grab...
...There are no further appeals...
...After Julius Caesar completed the destruction of the Roman Republic, his successor Augustus became the first emperor...
...That is a big plus...
...As Justice Kennedy noted in dissent, the soft money section of BCRA "begins to look very much like an incumbency protection plan...
...BCRA does just that by defining a new category of speech called "electioneering communications...
...So here we have a law that directly censors political speech in connection with elections, that Under BCRA, it is now a federal felony for corporations and labor unions to spend their general treasury funds on "electioneering communications...
...This politically motivated censorship of speech is flagrantly unconstitutional, and earlier attempts by Congress to smother "independent expenditures" for political speech were struck down by the Supreme Court...
...In the 1970s, campaign "reformers" enacted a prohibition against independent expenditures advocating the election or defeat of a candidate, if the expenditures exceeded $1,000...
...For decades, we've had an imperial, unaccountable court that has been implementing unconstitutional decrees...
...The exercise of core portions of our political and constitutional freedoms has now been declared a felony...
...But before examining those direct pro...
...It has incrementally increased the weight to be given to those interests, changed the standard employed in "balancing," and imposed more and more limitations on speech...
...Under the real Constitution, the federal government has no power to regulate public health, safety, and morals...
...And now, finally, at long last, we have reached this condition: The real Constitution mandates that "Congress shall make no law abridging the freedom of speech...
...It must not be a "balancing test," under which a shifting majority of judges may today "balance" rights and interests one way, and tomorrow balance them differently...
...Without free electoral speech, and the ability to criticize candidates and elected officials, representative self-government is at an end...
...The real Constitution provides for a small federal goverment with strictly limited, delegated powers...
...violence...
...The entire emphasis is on how expenditures for political speech, especially if it is speech that can actually influence an election, constitute "corruption" and "circumvention" of the system...
...Now a lot has changed, and we need to understand that, and act...
...Chamber of Commerce, AARP, and others like them—are subject to BCRA's ban...
...The 120-page "opinion of the court" makes odd reading...
...The government won...
...With that maneuver, the court concludes that Congress has the power to make criminals of those who engage in political speech that merely refers to a candidate before an election...
...Exceptions exist for certain limited types of corporations organized for political purposes, and for expenditures funneled through PACs, which have their own tight restrictions...
...Now, through the use of a bit of legal legerdemain, the court simply moves the constitutional line outward to include issue ads that mention a The Supreme Court has taken the position for decades that the government has interests of its own that justify suppression of political speech...
...They have name recognition, and have done favors over the years for many of their constituents...
...But buried in that tangle are, in the words of Justice Thomas, "unprecedented restrictions" on First Amendment freedoms, that constitute an "assault on the free exchange of ideas" and "directly target...and constrict...
...There is also little doubt which side the court is now on...
...Supporters of BCRA made it clear that they intend to continue this attempt to entrench their power...
...The prohibition also applies to those advocacy and public interest groups which are organized as non-profit corporations—that is to say, to nearly all of them...
...Campaign financing also has been seen as a game for Washington insiders...
...10 THE AMERICAN SPECTATOR FEBRUARY 2004 "SPENCER ROANE" The muzzling of groups that might be critical of members of Congress is so severe that the National Rifle Association is looking at beaming its point of view into the U.S...
Vol. 37 • February 2004 • No. 1
