Let a thousand voices boom across the airwaves, the Internet and in newspaper columns condemning the assault that Congress and the Supreme Court have inflicted on the First Amendment--on our most essential, fundamental speech: the ability to criticize our elected officials. I join the chorus.
However, it is the cynical nature of the McCain-Feingold campaign finance law that permits us to speak in these ways. We are merely prohibited from communications that could--even ever so indirectly--endanger the reelection of incumbents in Congress. That is the speech that has been criminalized: speech that could threaten the very powerful congressmen, who wrote and passed the law.
For centuries, mankind has wondered whether the pen is really mightier than the sword. But in modern political campaigns, incumbents and their battalions of consultants know that TV advertisements beat both hands down. That’s why there will be no interest groups driving an incumbent crazy with television ads espousing a message and naming that congressman by name. Congress banned these ads, at least when they matter most to politicians.
The law silences U.S. Term Limits and other independent groups during the critical time legislators and citizens are thinking most about politics--around elections. That’s no accident. Speech that threatens incumbents in the Congress has been outlawed. Ineffective speech, at least in their eyes, remains "free."
The Court’s reasoning, for lack of a better term, was that free speech rights must be sacrificed on the alter of the government’s compelling interest in reducing corruption and the appearance of corruption. Justices Stevens and O’Connor wrote for the majority: "The proliferation of sham issue ads has driven the soft-money explosion."
In Orwellian fashion, it helped the Court to designate the banned issue ads by independent groups as "sham" ads. It’s a hip word Sandra Day is tossing about, but does it have any legal definition? Perhaps labeling an advertisement a "sham" is like naming someone an "enemy combatant"--all constitutional rights are then lost.
I wonder: Did the Court watch every ad aired by a non-profit issue advocacy group to make this "sham" conclusion? Are they clairvoyant enough to know what future ads might say? Some of the ads may not be popular, but, if they stepped over a legal line, what was that line?
If the Court had actually viewed ads, one would expect them to be able to fashion a standard by which so-called sham ads could be distinguished from "legitimate" speech. This the Court did not do. Instead, they approved the ban on all issue-oriented speech.