Justice Antonin Scalia was "a little disoriented" and Justice Samuel Alito said "that's pretty incredible." Chief Justice John Roberts said: "If we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book" -- a hypothetical 500-page book containing one sentence that said "vote for" a particular candidate.
What shocked them, but should not have, were statements by a government lawyer who was only doing his professional duty with ruinous honesty -- ruinous to his cause. He was defending the mare's nest of uncertainties that federal campaign finance law has made, and the mess the court made in 2003 when, by affirming the constitutionality of McCain-Feingold's further speech restrictions, it allowed Congress to regulate speech by and about people running for Congress.
The government lawyer was trying to justify the FEC's 2008 decision that McCain-Feingold required banning "Hillary: The Movie" from video-on-demand distribution. The lawyer said, in effect:
Don't blame me. McCain-Feingold orders people to shut up when political speech matters most. It bans "electioneering communications" (communications "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate") paid for by corporations in the 30 days before primaries and 60 days before general elections. Corporations include not only, or primarily, the likes of GM and GE; corporations also include issue advocacy groups, from the National Rifle Association to the Sierra Club. So, yes, if a book published (as books are) by a corporation contains even a sentence of election-related advocacy, the book could -- must -- be banned by the federal government, and not just during the McCain-Feingold muzzle period.
Stunned, the court ordered that the case be reargued Sept. 9. On Aug. 30, a New York Times story included a delicious morsel about Fred Wertheimer, an indefatigable advocate of increased government control of the quantity, timing and content of campaign speech -- speech about the composition of the government:
"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.