McCain-Feingold is a monstrosity. However, lets not make the mistake of thinking that McCain-Feingold destroyed a functioning First Amendment. Since 1974, in many small steps, Congress has been doing precisely what the First Amendment expressly says Congress cannot do: regulating speech, especially political speech, especially political speech around elections.
McCain-Feingold just took a giant leap forward ? into tyranny. And now our movies ? from Fahrenheit 9/11 to Celsius 411 ? need political lawyers, too. Their makers and their advertising campaigns fall under Federal Election Commission jurisdiction. With Sinclair Broadcasting's decision to air a documentary portraying candidate John Kerry "negatively," we find television programming in need of legal defense, because it is subject to legal attacks. The day in which a film or television program is censored for mentioning the name of a politician is not far off.
But if there is any silver lining in this election, it is the massive spending. The reaction of so many people ? wealthy and not ? has been to respond to the controls on speech with new ingenuity, by putting more of their "lives, fortunes and sacred honor" on the line. That, rather than suppressed speech, is in keeping with American tradition.
The increased spending in this cycle has caused many of the big media outlets to whine and call for further clampdowns by Congress in future campaigns. But during this mean season, these media outlets have also demonstrated for all to see that they are not fair or balanced. They are partisans. Does anyone seriously doubt which dog CBS or The New York Times has its money on? Or Fox News or other conservative outlets, for that matter?
At the same time, most of the big media have argued incessantly for Congress to regulate and effectively block issue ads close to elections, calling this speech a "First Amendment loophole." But the power of big media and their record of numerous partisan intrigues will lead many to view "freedom of the press" as the biggest loophole of all.
Don't take the bait. We have two paths we can travel. We could go with the flow and try to regulate our opponents' speech, hoping that the jack-booted thugs of the future speech police shall be enforcing our will against our political adversaries. Or we can scramble back to the First Amendment's promise of "free-speech loopholes" for one and all. As I make clear in my Common Sense e-letter, freedom works just fine.
What kind of elections will we have if we were to stop Congress from regulating our speech? Rough and tumble elections, no doubt, like this one. But with many more voices. And many fewer lawyers.
Is it freedom of speech if you must hire an attorney before you hand your neighbors a flyer with your opinions on it, sing a song at a rally for your preferred candidate, make a movie, pool your money with others to run a TV commercial or contribute your own hard-earned cash to the full extent of your passion instead of the arbitrary limit set by incumbent congressmen?
Doesn't seem much like freedom. A woman emailed me this week afraid that it might be against the law for her simply to make a political button without first filing legally with the authorities. She's not just paranoid.
Is what she's doing illegal? Should it be? What if she sent it to every person in her neighborhood?
Can a country remain free without the freedom to speak out about politics? As it stands now, before you answer, you may want to consult an attorney.
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