Quixote/Pollyanna and the 1st Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This is a long post and it starts with a Lansing State Journal Op-Ed I wrote in Dec-03. My title was “Pragmatism as Principle”; I don’t remember the title under which it was published. It is a useful foreword to the administrative and judicial steps taken since it was written that further tighten the noose around my freedom of speech – and yours.

Pragmatism as Principle [from Dec-2003]

Amendment XXVIII to the United States Constitution:
“Upon petition of the Congress, the Supreme Court shall conduct a review of what, in the majority’s opinion, may constitute corrupting influence, and shall be empowered to immediately amend this document in remedy thereof.”

Recognizing this fictitious Amendment in December 12th’s New York Times (“A Supreme Court Infused With Pragmatism“), Linda Greenhouse opines:
“The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision.”

A simple rewording, changing no overt meaning, may be enlightening:
“The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, more concerned with a populist view of the controversial new law than with the concept of limited government.”

From a newspaper, tacit approval of judicial tampering with the First Amendment (wherein occurs the phrase “free press”) is remarkable. The Times apparently prefers “real-world context” to “fine points of constitutional doctrine” so long as there is no inconvenience to its own autonomy (newspapers are presently exempt from Campaign Finance Reform speech restrictions). The Times here promotes a “living Constitution”, generally meaning: Why pay attention to the “fine points” of a 200 year old document, written for a thinly populated agrarian society, by a generally wealthy group of white male elitists?

Ad-hominem subtext notwithstanding, admiration of the Framers requires neither a belief in their universal decency nor a presumption of their prescience. Rather, it arises from their prior acceptance of grave personal danger in rebellion against the world’s most powerful state in order to secure their endorsement of human liberty: the Constitutional prohibition against exercise of arbitrary government power.

Indeed, upon what else but precisely this fundamental point — limited government — should we expect the attention of Justices charged with defending the Constitution to be concentrated? Perversely, the Court’s majority opinion held that restrictions on political free speech are justified in order to reduce ambiguously defined “corrupting influences”. Substituting populist moral fashion for the rule of law is exacerbating a symptom, not treating the cause.

The cause is insufficiently limited government, from which politicians derive their license to peddle influence: the arbitrary manipulation of laws and regulations; the manipulation of the allocation of goods in society. Without this ability, bribes would not be forthcoming. Politics in money is the problem, not money in politics.

When a government exceeds its legitimate duty of fairly and equally enforcing rules, instead distributing “favors”, special interests will always be vying for control of the spoils. The media is next.

Chief Justice Rehnquist notes, in dissent, that “newspaper editorials and political talk shows benefit federal candidates and officeholders every bit as much as a generic voter registration drive conducted by a state party; there is little doubt that the endorsement of a major newspaper affects federal elections, and federal candidates and officeholders are surely ‘grateful’ for positive media coverage.”

The First Amendment especially intends to protect freedom of political speech, but since the new standard for restricting speech is the collective opinion of the Court’s majority regarding what constitutes “corrupting influence”, it is difficult to see what Constitutional limitation remains which might help them avoid defining editorial speech as a “corrupting influence” that Congress could properly address.

The increased political value (a.k.a. potential “corrupting influence”) of an editorial should persuade newspapers to lead the opposition to this flawed legislation. The rest of us would do well to spend 20 minutes rereading the Constitution and reflecting upon the truly Revolutionary concept of government therein.


I had a limited word count when I wrote that. Here are 2 opinions I had to leave out:

Antonin Scalia’s dissent includes this passage:

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U.S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of “soft” money to fund “issue ads” that incumbents find so offensive.

Here is part of the opinion from Justice Kennedy:

Although today’s opinion does not expressly strip the press of First Amendment protection, there is no principal of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress.


Now, to today’s McCain/Feingold downdate.

Federal, state, and local governments control the redistribution of nearly 40 percent of the Gross National Product. They pass, and selectively exercise the power to enforce, thousands of criminal laws. They frankly contend an unrestricted right to regulate our lives. We should be extremely concerned about elections and about our ability to critique our politicians. Most especially 60 days before election time.

The McCain/Feingold Bipartisan Campaign Reform Act of 2002 is a heinous restriction on our ability to do that.

The “unintended consequences” of this act are legion. That’s another way of saying “our intentions outweigh results in our planning scenarios.” This could reasonably serve as a definition of fascism or communism. That’s not hyperbole. Think about it.

Incumbent politicians are fond of McCain/Feingold because it lets them eat their cake, have your cake too, and then fine you if you don’t shut up about it. They’re saying, “We’re going to regulate what you do, and when election time rolls around we’re going to restrict what you can say about it.”

McCain/Feingold should be renamed for what it is: “The Quixote/Pollyanna Incumbent Protection Act of 2002.”

Campaign Finance Reform is, ipso facto, a fundamentally flawed concept because it necessarily involves violation of the First Amendment. It does not matter how egregious you think MoveOn is, or how disingenuous you believe the Swift-Boat-Vets-for-Truth were: restricting their speech violates the First Amendment.

So, what’s the problem you may ask, neither MoveOn nor SBVfT were muzzled in the last election?Neither were the New York Times nor the Washington Times.If you are a 527 PAC, or an “official” news outlet, you are momentarily, and whimsically, excepted from McCain/Feingold.

No principle is involved. It is arbitrary. The MSM don’t get it or they’d be on the barricades instead of supporting this asinine legislation (as has my local paper).

Interpretation is entirely at the mercy of the Supreme Court. Lower courts are following their lead. A little recent history:

  • In 2002, the Federal Election Commission exempts “the Internet” from the Campaign Finance Reform contribution regulations of McCain/Feingold.
  • In 2003 the Supreme Court upholds McCain/Feingold, explicitly saying there are excuses for regulating “political speech.”
  • In September, 2004 U.S. District Judge Colleen Kollar-Kotelly overturns the 2002 FEC Internet exemption. (If you find that name familiar, it is probably from the final Microsoft anti-trust decision.)
  • By March 3rd, 2005, the FEC is discussing how to implement Kollar-Kotelly’s decision.

The bottom line is that the archives of this blog may become violations of McCain/Feingold in the next Federal election. If you haven’t read how to implement, above you may not appreciate this danger. Here’s an excerpt, starting with a quote from FEC Commissioner Bradley Smith:

“The FEC did an advisory opinion in the late 1990s [before McCain/Feingold] (in the Leo Smith case) that I don’t think we’d hold to today, saying that if you owned a computer, you’d have to calculate what percentage of the computer cost and electricity went to political advocacy.”, says Bradley Smith, an FEC Commissioner. … Smith and the other two Republican commissioners wanted to appeal the Internet-related sections [of Kollar-Kotelly’s decision]. But because they couldn’t get the three Democrats to go along with them, what Smith describes as a “bizarre” regulatory process now is under way.

As ye McCain, so shall ye Feingold. But, a better response than “I don’t think we’d hold to today…”, or “’bizarre’ regulatory process” would be: “We’re screaming our lungs out about this insanity and if this goes forward I’m damn well going to resign. Why, oh why,did George Bush ever sign such a bit of totalitarianism? What-in-hell was he thinking?”

Let me give you one more example of the slippery cliff they’re playing with here. 60 days before an election, does every Google search you conduct that returns more Democrat hits than GOP hits need to report to the FEC? If not, why not? Google is a large corporation, they have lots of money. And in fact, in 2004 98% of Google employees’ $207,650 (federal) contributions went to Democrats. Maybe they skew results as a political contribution.

“Campaign Finance Reform” has a long and useless history. Check here and here.

Finally, I will give a little rant:

Memo to John and Russ: get off my back, get out of my pocket, and stop trying to get into my mind in order to grab my tongue. All the cleverness you can bring to this has been, and will be, thwarted for reasons apparently too obvious for you to see. Meanwhile, the continuing loss of freedom while you tweak your speech controls wasn’t even worth the breath you wasted in the cloakrooms in the first place.

Ample history demonstrates your command and control theories are doomed, so go for “full disclosure”. I’ll even tell you how many hits my blog gets, though I can’t read minds so I can’t give you the partisan breakdown you’d need for the thought police to assess the proper tax.

Update 4-Mar-05 12:10
See excellent posts on this by Captain Ed and Mark Tapscott.

Update 6-Mar-05 10:19
Tip of the hat to Powerline for this great defense of Bradley Smith by Winfield Myers at:
Democracy Project
and this