First Amendment means nothing?

I'm fascinated at how little the First Amendment means to so many people in the United States (check some of the comments on this Orange Punch blog post). Obama specifically criticized the Supremes for their Citizens United decision with a wildly inaccurate characterization of it and Sam Alito gets criticized for being seen to silently mouth the words "not true." All right, it was a minor breach of protocol. Obama's characterization was a major breach of SOTU precedent -- no president has used it to make such a direct criticism -- and a major breach of the truth. In the fuss, we forget about the First Amendment.

The McCain-Feingold law included a novel restriction on advocacy organizations, a rule that they couldn't air any ads or other kinds of modes of persuasion in a way that the FEC could interpret as electioneering just before -- 60 days before -- an election, when election-related speech should be at its most robust and political speech most carefully protected. The campaign restrictionist crowd didn't like it, and the Supremes could have issued a narrower decision, but the First Amendment ("Congress shall make no law," remember?) was clearly violated. It was correct to strike the clearly unconstitutional law down. That's the Supreme Court's job, arguably its only important job. But the restrictionists reverse the logic of democracy. Elections are supposed to be how the people control the government, but if the government controls the electoral process, declaring who can participate and how, the permanent government cannot be really held accountable. That's what campaign finance "reform" is really all about, giving government more control over the process that is supposed to control it.

Are the Supremes ready to rock'n'roll?

What a number of observers have noted about the Citizens United or Hillary the Movie case is true. The Supremes went out of their way to make it a constitutional case when they clearly had other options. They could have ruled narrowly without getting to the constitutional issue that e.g., the McCain-Feingold law didn't really cover movies distributed through On Demand. But they wanted to invalidate the law that prohibited corporations (profit and non-profit, including advocacy groups like NRA and ACLU) from saying anything that even smelled like electioneering 30 (primary) or 60 (general) days before an election. It was a healthy impulse. If the First Amendment means anything, it's protection of the freedom of political speech, no matter who says it or (considering technology) how, especially in the time around an election. McCain-Feingold is profoundly subversive of basic liberties. Theoretically elections are how we control the government, but if the government controls elections with minute rules, they (the permanent government) end up with zero accountability -- not that it has much in the best of circumstances, but as long as there's a shred of a constitution there's a ghost of a chance..

The fact that the Supremes stretched to reach this result -- generally uncharacteristic, they usually try to avoid constitutional issues unless absolutely necessary -- raises the question of whether they're moving into a more aggressive mode. As a barely conservative court with a clearly liberal administration, it's possible. As this Register editorial notes, the McDonald v. Chicago case, which tests whether the Second Amendment applies to state and local governments, will give us a pretty good hint.

Don't censor "Hillary: The Movie"

The Supreme Court heard a case last week that just might give it the vehicle to gut the misnamed campaign "reform" law known as McCain-Feingold. That law, you might remember, prohibits independent expenditures by corporations (including non-profits) and unions from advocating for or against a candidate within 30 days before a primary and 60 days before a general election. As this Register editorial explains, that's precisely the time when speech should be the most free.

The case involved a flick produced by the conservative group Citizens United called "Hillary: The Movie," which from all reports (I haven't seen it) was about as objective as one of Michael Moore's mockumentaries. The group wanted to show it on cable and on-demand during the primaries, but the FEC enjoined it and CU appealed. During oral arguments, in response to questiuoning, the govt. lawyers suggested that perhaps books could be banned if they were produced with corporate funds. That seemed to shock the justices. I hope they invalidate the entire law. Require full disclosure of who is giving money and how much, in real time on the Internet, and let voters decide whether such donations should affect the way they vote. The electyion process is supposed to be the way the people control the state, but instead it's become another way for the state to control the people.