Monday, February 23, 2004
Kausfiles writes:
Psst! Isn't the celebrated, goo-goo "Stand by Your Ad" provision of the McCain-Feingold law, the one that's had such an impact discouraging negative spots in the current campaign, transparently ... you know ... unconstitutional? The provision requires candidates to appear personally and say they approve any TV ad. Since when can the government dictate what candidates must say when? It's not as if the government is declaring that you can't get public financing unless you say this. It's not declaring you can't get discounted TV time unless you say this. It's not giving candidates anything in exchange. It's just decreeing that they have to say it--even in a perfectly legal ad bought for full price with small donations ("hard money") from idealistic individual supporters. Could the government get away with a rule like this for printed speech--say, requiring that the Federalist Papers feature a color photograph of "Publius"? I certainly hope not. (We'd finally find out who "Atrios" is, but it wouldn't be worth it.)
Prof. Hasen agrees that the new rule is "compelled speech" that violates the First Amendment, but notes that Justice Rehnquist seems to have upheld the provision with a few conclusory words in the recent McConnell case. I tend to think Rehquist's pathetic paragraph leaves the particulars of the provision--as opposed to the general idea of making campaigns disclose and ad's source--open to challenge. After all, how does requiring that the candidate himself or herself appear--as opposed to just requiring that funding be disclosed by someone, somehow--shed the "'light of publicity" on campaign financing"? ...
Forget whether or not "money equals speech"--this seems like the Court's outrageous anti-freedom holding. There's no question, after all, that what's being abridged here is speech--the right to say what you want about politics. ... P.S.: As Hasen notes, the provision was explicitly designed to protect politicians from negative ads. And it's helped turn the Democratic primary race into an uninformative blandwagon in which voters know much less, at this stage, about the characters of the two leading candidates than in previous multicandidate primaries (e.g. Mondale and Hart in 1984, Dukakis and Jackson in 1988, Clinton and Tsongas in 1992). ... 2:43 P.M.
Kaus is right that BCRA 311is unconstitutional. McConnell failed to raise the issue of its unconstitutionality per se. That is, plaintiffs made a losing argument that 311 was unconstitutional under the Buckley v. Valeo
express advocacy bright line rule, but failed to argue that it is compelled speech of the sort unconstitutional in Talley McIntyre ACLF Watchtower
Wooley Barnette and Riley v. Federation of the Blind. But who has standing to bring the case? Not my clients. Standing to challenge the underlying federal discaimer statute, FECA 318, is easier to come by.
All you need is a sigh that says "Smith for congress." More on this topic at Majors.blogspot.com.
Psst! Isn't the celebrated, goo-goo "Stand by Your Ad" provision of the McCain-Feingold law, the one that's had such an impact discouraging negative spots in the current campaign, transparently ... you know ... unconstitutional? The provision requires candidates to appear personally and say they approve any TV ad. Since when can the government dictate what candidates must say when? It's not as if the government is declaring that you can't get public financing unless you say this. It's not declaring you can't get discounted TV time unless you say this. It's not giving candidates anything in exchange. It's just decreeing that they have to say it--even in a perfectly legal ad bought for full price with small donations ("hard money") from idealistic individual supporters. Could the government get away with a rule like this for printed speech--say, requiring that the Federalist Papers feature a color photograph of "Publius"? I certainly hope not. (We'd finally find out who "Atrios" is, but it wouldn't be worth it.)
Prof. Hasen agrees that the new rule is "compelled speech" that violates the First Amendment, but notes that Justice Rehnquist seems to have upheld the provision with a few conclusory words in the recent McConnell case. I tend to think Rehquist's pathetic paragraph leaves the particulars of the provision--as opposed to the general idea of making campaigns disclose and ad's source--open to challenge. After all, how does requiring that the candidate himself or herself appear--as opposed to just requiring that funding be disclosed by someone, somehow--shed the "'light of publicity" on campaign financing"? ...
Forget whether or not "money equals speech"--this seems like the Court's outrageous anti-freedom holding. There's no question, after all, that what's being abridged here is speech--the right to say what you want about politics. ... P.S.: As Hasen notes, the provision was explicitly designed to protect politicians from negative ads. And it's helped turn the Democratic primary race into an uninformative blandwagon in which voters know much less, at this stage, about the characters of the two leading candidates than in previous multicandidate primaries (e.g. Mondale and Hart in 1984, Dukakis and Jackson in 1988, Clinton and Tsongas in 1992). ... 2:43 P.M.
Kaus is right that BCRA 311is unconstitutional. McConnell failed to raise the issue of its unconstitutionality per se. That is, plaintiffs made a losing argument that 311 was unconstitutional under the Buckley v. Valeo
express advocacy bright line rule, but failed to argue that it is compelled speech of the sort unconstitutional in Talley McIntyre ACLF Watchtower
Wooley Barnette and Riley v. Federation of the Blind. But who has standing to bring the case? Not my clients. Standing to challenge the underlying federal discaimer statute, FECA 318, is easier to come by.
All you need is a sigh that says "Smith for congress." More on this topic at Majors.blogspot.com.
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