For those who follow such things there's a chance that the Supreme Court will do the right thing this summer and nullify McCain-Feingold. At least the editors at National Review are hopeful:
From its conception, the McCain-Feingold campaign-finance law was an assault on the First Amendment. Signing that unconstitutional bill into law, knowing it to be unconstitutional, was one of the worst moments of George W. Bush's presidency. Yet this malignancy lurks in the legal code, widely accepted, even celebrated. Now Deputy Solicitor General Malcolm Stewart has gone before the Supreme Court arguing that McCain-Feingold gives the government the right to ban books and films. He's right, it does. And for that reason, McCain-Feingold should be nullified.
At issue is a film called Hillary: The Movie, a documentary produced by the nonprofit group Citizens United, which did not wish to see Senator Clinton elected president. Because McCain-Feingold prohibits so much as mentioning a candidate's name in pre-election communications paid for by certain disfavored groups - unions and "corporations" - the filmmakers were informed by a federal judge that showing their work would constitute a crime. The filmmakers sued, and the case is Citizens United v. Federal Election Commission. Mr. Stewart is defending the government's ban on this film; the same rules that apply to a campaign commercial apply to a documentary film, his reasoning goes.
Justice Alito alertly pressed Mr. Stewart on that issue: If commercials and films are covered, how about books? How about campaign biographies? Yes, Mr. Stewart answered, the U.S. government is prepared to ban books, under certain circumstances, and is legally empowered by McCain-Feingold to do so. Jaws dropped, black robes fluttered.
There is in politics a principle referred to as the law of unintended consequences which states that meddling with things will almost invariably produce completely unforeseen and completely unwanted outcomes. McCain-Feingold was a well-intentioned attempt to limit the impact of big money on elections by banning political ads within 60 days of an election.
President Obama's Federal Election Commission lawyers argue, however, that the law must be interpreted as also covering films and books and that, if so, this interpetation gives the administration the right to censor films and ban books that mention a candidate and are in circulation 60 days prior to elections. National Review Online agrees that logic compels that the law be interpreted as covering films and books but argues that this is sufficient reason to overturn a law whose implications are so clearly at odds with the First Amendment.
NRO is right. The Court is expected to hand down its decision by the end of June.
RLC
