"In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, 'A campaign document in the form of a book can be banned.'"
Last Wednesday, Elena Kagan, the new solicitor general, said, in effect: Relax, the FEC has never taken enforcement action concerning a book under McCain-Feingold. Yes, but the FEC deadlocked about prosecuting George Soros under another section of federal campaign law because he did not make required reports of money spent on his promotion of his 2004 book attacking George W. Bush -- money that might, or might not, have been "independent expenditures" for "express advocacy."
On Wednesday, Chief Justice Roberts said: "We don't put our First Amendment rights in the hands of FEC bureaucrats." Actually, before he and Alito joined the court, it allowed Congress to put our rights into those meddlesome hands. Hans A. von Spakovsky, a former FEC commissioner, says there are 568 pages of FEC regulations, and 1,278 pages of the Federal Register have been filled with explanations and justifications of those regulations. For James Madison, 10 words sufficed: "Congress shall make no law ... abridging the freedom of speech."
The FEC's ever-thickening fog of legal hairsplitting makes it impossible to draw any bright line telling Americans what political speech is and is not legal. Nevertheless, supporters of government rationing of political speech say the court should not reverse itself regarding McCain-Feingold because stare decisis -- adherence to precedents -- is virtuous.
Oh? The court's finest modern moment, Brown v. Board of Education in 1954, effectively reversed Plessy v. Ferguson (1896). Yes, the court upheld McCain-Feingold just six years ago, but egregious and mischievous mistakes should be corrected before they produce torrents of bad precedents.
Defenders of McCain-Feingold say allowing political spending by corporations will unleash too much speech. Steve Simpson of the Institute for Justice replies:
"Freeing corporate speech will lead to what more speech always leads to -- a debate. Wal-Mart will support President Obama's health care reform, as it has done, but the National Retail Federation will oppose it, as it has done. ... Corporations do not speak with one voice any more than individuals do."
Regulations controlling political speech inevitably multiply and become increasingly indecipherable and unpredictable. The court should take the country up from McCain-Feingold, to Madison.