Bob Bauer is a Washington lawyer, Democrat and articulate, informed opponent of McCain-Feingold. That makes him one of the most unique people in the nation’s capitol. He has a superb post today that takes up the question of whether McCain-Feingold “works.”
Bob’s basic point is the same one I have been making since before McCain-Feingold became law in 2002 – it is unconstitutional because it makes the definition of permissible political speech dependant upon the whims of Congress. That is in direct contravention of the First Amendment that mandates “Congress shall make no law” governing speech.
Bauer’s post is the most succinct explanation of this fact in the context of the Wisconsin Right to Life case now before the U.S. Supreme Court, which, among much else, has inspired an extensive discussion in the legal and public policy communities about whether McCain-Feingold has worked.
Here’s Bauer’s key paragraphs:
“Consider one of the primary responses of the government: that the prohibition on nonprofit corporate speech, in theweeks before an election, cannot offend rights of association if there are alternatives, which are the alternatives of changing an ad to remove reference to a candidate, or funding it through a political action committee.
“The same ‘interests’—special, corporate interests, in the lingo of reform—can still speak, only by new rules set by the state. The government’s argument is: what’s the difference, if the speech, by other means, is still possible? It will allow for speech, but it must be speech expressed in the form the government approves: it can impose its will and, when it does, it can show that the statute has, in the vindication of its authority, ‘worked.'”
Go here for the full Bauer post and, as Glenn Reynolds, says, just keep scrolling.
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