George Will picks up on a theme The Other Club discussed here. We pointed out that shifting the debate to the question of how to appropriately systematize the violation of the First Amendment is not a victory for free speech.
Will has hopes that when SCOTUS looks at this case it will begin to unravel the fabric of incumbent protection.
A Retreat on Rationing Free Speech?
…Imagine: Judges scouring the political landscape, searching for evidence (people’s past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is “really” the functional equivalent of electioneering (express advocacy).
Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should “make a sensible citizen’s blood run cold.” An uncircumscribed inquiry into “intent” would become “an intrusive process” in which an organization’s internal communications would be subpoenaed and political operatives and consultants would be “put under oath and questioned about what they meant and intended and thought.”
…the reformers’ zeal for regulating speech is undiminished. The Federal Election Commission recently fined some “527” groups (named for the tax code provision under which they organize) $630,000. Their offense? Issue advocacy in 2004 that, “taken as a whole,” could “only be interpreted by a reasonable person as containing the advocacy of the election or defeat” of a federal candidate. Editorial writers at The Post and the New York Times, ever eager to regulate political advocacy not done by newspaper editorial writers, approved, although the Times thought the fines insufficient, and although The Post, calling the current law “murky,” thought the FEC should have enforced the murkiness quicker.
…the Supreme Court … can begin undoing the damage it did at the time it affirmed McCain-Feingold and licensed government to ration political speech.
I hope Will is right, but even while SCOTUS is focused on this tiny portion of the warp and woof, the new Speaker of the House is calling for more restriction on free speech: Tapscott and Fitzgibbons on Nanzi Pelosi.