The Chance for a Free Speech Do-Over

Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.

Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.

The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.

Ted makes a compelling case here for oveturning much of McCain-Finegold (herafter M-F, obscene double meaning intended). The thing to remember about M-F's prohibition on speech by corporations is that the prohibition applies to non-profit corporations as well as for profit corporations. That effectively covers almost all advocacy groups, right and left, becasue the corporate form allows people to organize with limited liability, the corporation being the primary party held liable for things like libel, slander, and good, old-fashioned auto accidents.

An auto accident is a god example of how that limited liability works. If a group of people get together for a particular form of advocacy, don't incorporate, and one of them causes an auto accident while driving to a rally, all members of the gorup can be held jointly and severally liable for the damages on a joint venture theory of liability. OTOH, if the group incorporates as a non-profit corporation, then only the corporation and the individual who caused the accident can be held liable. Hence, almost all non-profit advocacy groups incorporate, causing them to be subject to M-F restrictions. Winning this case is vital.

Actually, YouTube, the internet, blogs, twitter, etc, etc, have made McCain-Feingold somewhat moot, IMO.

That is certainly true for those productive enough to own a computer and have internet access. But what about the dolts that don't and watch teevee day and night? Those are the ones who are swnging our elections one way or the other (not that they would be fertile ground for a message grounded in liberty anyway.)

Ain't universal suffrage grand?

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