Thursday, February 19, 2004
Letter to Wall Street Journal
John Harwood at john.harwood@wsj.com
Dear Mr. Harwood,
Your article of 2/18, McCain-Feingold Helps Democrats Stay Competitive,
which shows that criticism of politicians is being chilled by section 311 of the 'Partisan Campaign Reform Act, leaves out one pertinant detail.
The "stand by your ad" regulations are unconstitutional.
Talley v California and McIntyre v Ohio found that the government cannot require identification disclaimers on campaign speech. These cases have been upheld twice more in American Constitutional Law Foundation and Watchtower v. Stratton. These decisions are consistent with the general rule that the government cannot compel speech, such as "live free or die" in Wooley v Maynard or saluting the flag in Barnette.
You might be thinking, but didn't the Supreme Court uphold 311 in McConnell v. FEC? Yes and No. In McConnell, plaintiffs argued that 311 was a regulation of issue ads, as in Buckley v. Valeo, but did not challenge 311 as an unconstitutional disclaimer under McIntyre. Decision on that issue will have to wait for a case that raises the point. I have had similar rules struck down in Indiana.
Cordially,
Robbin Stewart.
John Harwood at john.harwood@wsj.com
Dear Mr. Harwood,
Your article of 2/18, McCain-Feingold Helps Democrats Stay Competitive,
which shows that criticism of politicians is being chilled by section 311 of the 'Partisan Campaign Reform Act, leaves out one pertinant detail.
The "stand by your ad" regulations are unconstitutional.
Talley v California and McIntyre v Ohio found that the government cannot require identification disclaimers on campaign speech. These cases have been upheld twice more in American Constitutional Law Foundation and Watchtower v. Stratton. These decisions are consistent with the general rule that the government cannot compel speech, such as "live free or die" in Wooley v Maynard or saluting the flag in Barnette.
You might be thinking, but didn't the Supreme Court uphold 311 in McConnell v. FEC? Yes and No. In McConnell, plaintiffs argued that 311 was a regulation of issue ads, as in Buckley v. Valeo, but did not challenge 311 as an unconstitutional disclaimer under McIntyre. Decision on that issue will have to wait for a case that raises the point. I have had similar rules struck down in Indiana.
Cordially,
Robbin Stewart.
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