I was shocked that the Supreme Court upheld the McCain-Feingold campaign finance bill that banned soft-money contributions to political parties and advertisements mentioning candidates 60 days before an election.
This is the single worst Supreme Court decision since the Dredd Scott case.
In essence, the Supreme Court has argued in its majority opinion that the mere appearance of corruption is sufficient ground to justify removing First Amendment protection on political speech. This is an absolutely ridiculous ground to base such a sweeping ban of traditionally protected forms of speech. To argue that one should not have the right to buy advertisements critical of a candidate for two months prior to a general election because it might appear corrupt is patently unsupportable.
Moreover, this new law has created a system in which small donors are being edged out by large radical groups and individuals like George Soros who is pledging millions to defeat Bush. If that doesn’t create the appearance of corruption, I fail to see what does. Yet under the rules of McCain-Feingold, we’re seeing an unprecedented sweep of power from democratic and responsible parties to radical interest groups. McCain-Feingold has already begun to do its damage.
By giving Congress what is essentially a blank check to remove whatever they deem "undue influence" over the electoral process, the Court has virtually garantee that there will be a chilling effect on free speech. No matter what party, politicians will quickly find that "undue influence" consists of donors who give to their opponents or challenge their views. The First Amendment clearly states "Congress shall make no law…" The Court has now changed that so that in electoral terms Congress can make any law it wants as long as it is tailored to reduce "undue" influence. This is a position which guarantees abuse.
The dissenters have it right – this bill limits political expression, has a chilling effect on speech, and violates the First Amendment. The fact that 5 Justices of the US Supreme Court were so willing to ignore the most fundamental basics of the Constitution in order to uphold what is essentially an Incumbant Protection Act is sickening.
This decision stands in the face of the Constitution and precedents such as Buckley v. Valeo. It is a horrendous decision that will ensure that our electoral process is no longer a free speech area and that incumbants can use legal maneuvers to protect themselves from having to face the unpleasantness of actually having to defend themselves and their ideas in the period of an election where most voters make their decisions.
Former Supreme Court Justice John Harlan wrote in the key case of NAACP v. Alabama that:
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly… In the domain of these indispensable liberties, whether of speech, press or association, the decisions of this Court recognize the abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.
The Court has done exactly what Harlan warned they would – and the effects on free speech and freedom of assembly have ensured that the political voices of many Americans will now be silent and the rules of McCain-Feingold will only increase corruption rather than reducing it. This is a dark day for political rights in America, and the 5 Justices of the Court who allowed this to happen have turned their backs on the Constitution and the critical First Amendment.
No, the single worst case since Dredd Scott was Bush v. Gore. This is, interestingly enough, the single longest opinion since Dredd Scott, beating it in pages but not in word count.