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» Hatrack River Forum » Active Forums » Books, Films, Food and Culture » The Lunacy of the McCain-Feingold Act,

   
Author Topic: The Lunacy of the McCain-Feingold Act,
Dagonee
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First, the good news is that courts seem to be reigning in some of it:

quote:
A divided three-judge court ruled yesterday that ads advocating for an issue and mentioning candidates can run during an election, creating a loophole in the law that sought to control the power of big money in elections.

In a 2 to 1 ruling, the court found that the government had no compelling justification to regulate television ads such as the ones Wisconsin Right to Life Inc. broadcast in July 2004, which advocated stopping congressional filibusters against President Bush's judicial nominees.

The ads ran when Sen. Russell Feingold (D-Wis.) was running for reelection and had opposed some of Bush's nominees. The ads made no mention of Feingold's record, instead urging Wisconsin residents to call their senators to express their dissatisfaction.

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, agreed with Wisconsin Right to Life that ads such as theirs merely advocate a position without trying to criticize the record of a particular candidate.

The ads are not targeted "electioneering communications" and should not be burdened by the reporting requirements of the federal campaign finance law, Leon wrote.

Even the majority opinion demonstrates some of the lunacy underlying this law. We are, apparently, to have judges reviewing political speech to find out if the intent was to get someone to cast a particular vote or merely to advocate a "position."

The dissent underscores this even more:

quote:
In a lengthy dissent, Judge Robert W. Roberts wrote that the majority's approach was too simplistic in reviewing just the language of the ads, even though there is a significant factual dispute about their purpose. He argued that the ads' intent is critical to determining whether the FEC should be regulating them.

First, were the Wisconsin Right to Life ads truly meant to advocate for an issue, as the group's lawyer asserts, Roberts asked, or did the sponsors intend to influence the election and lead voters to cast votes against Feingold? Also, Roberts wrote, no one has definitively addressed the FEC's argument that the ads were sham ads, "designed and timed to set up a legal challenge" and create a loophole in the McCain-Feingold law.

Are we really at the point where we are going to start asking what the intended effect of speech is before we grant it first amendment protection? This is crazy. Our speech is to be examined to see if it has practical effect and our motives are to be examined to see if we wanted it to have that practical effect. If our motives are found wanting and the speech found effective, we are to register with a government commission or face civil penalties.

Why, why, why do we think this is compatible with free speech?

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Will B
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Most people I talk to about this have no idea that McCain-Feingold restricts political speech. They think that it "gets the money out of politics," and never heard what it actually does.

I note that the WI R to L ads did not air. The lower-court judge used prior restraint -- also supposed to be something the USA *never* gets to do, even with slander.

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aspectre
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Oh give me a break. Broadcasting is a government monopoly.
Allowing scumbags with money to monopolize the public commons has nothing to do with free speech, and everything to do with using money to suppress the public's right to use its own property.

[ December 22, 2006, 02:03 AM: Message edited by: aspectre ]

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Lyrhawn
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What I'm waiting to see is what McCain does when he runs for President. Will he follow his own rules and use public funding? Or will he go around it an amass a giant warchest?

I don't think he can win, working within the construct of public funding that he created in his own law, so he's either underfunded, or a hypocrite.

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Dagonee
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quote:
Originally posted by aspectre:
Oh give me a break. Broadcasting is a government monopoly.
Allowing scumbags with money to monopolize the public commons has nothing to do with free speech, and everything to do with using money to suppress the public's right to use its own property.

Give me a break. These restrictions do not only apply to airwaves. Your comment is irrelevant.

It is typical of the reasoning underlying the bill, though - calling someone a "scumbag" because they want to influence the outcome of an election.

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Lisa
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quote:
Originally posted by aspectre:
Oh give me a break. Broadcasting is a government monopoly.
Allowing scumbags with money to monopolize the public commons has nothing to do with free speech, and everything to do with using money to suppress the public's right to use its own property.

One more example of government intrusion "requiring" more government intrusion. Any government monopoly is always going to lead to the government stepping in and stepping on people.
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Dan_raven
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I understand your complaints Dag. So what do we do?

Do we just allow those who can afford to buy the most advertisement win all the elections?

Do we just allow our elected officials to spend most of their energy and time searching for money in order to run the next campaign, open to the officially endorsed bribery that is the system now?

Do we just allow groups who have the most money make wild accusations and spout well acted lies enabled to win and govern over us?

The idea behind an elected democracy is that those who are set to serve their country well will get reelected as their actions will be approved by the electorate. Those who are set only for personal gain will also serve their country well so that the electorate will reinstate them.

But it is no longer important what our elected officials did. It is only important what they say, or what others say they did. Those with the money are the ones who can buy the podium the longest, ensuring what they say gets heard much more often that the truth about what they did.

I picture Freedom of Speech means that everyone can step up on the podium to speak their say. No one has to listen, but each gets a chance. What should we do when the podium is bought and paid for, when freedom of speech comes with a big price tag?

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Dagonee
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Assume the existence of a podium with unlimited time and guaranteed hearing by the relevant audience.

In those cases, the people with the most persuasive speaking style, speechwriter, or hairdo might very well win. Would we require people with voice-over quality voices to speak through a voice distorter? Require someone who can conjure vivid images or convey complex ideas in a way accessible to all to have their text rewritten because it's too persuasive? The ability to do either of those things is - like the possession of large amounts of money - partly acquired by birth and partly by hard work - with varying amounts of the one cause or the other for different people.

Of course, the law doesn't actually stop someone who has enough money to buy an ad on his own. Rather, it affects people who are pooling their money. In short, it actually increases the disparity in access to communication between the rich - who have no need to pool - and the not so rich.

Further, it allows people who can interpret the dense, imprecise text of the court cases on the issue - something that takes money to do for all but a few lawyers - to skirt this ridiculous line. "Did this group intend to influence the election?"

Of course they did. That's why they bought the ad in the first place. Because they believe that

There's some pretty fiction here that, if we allow the ad's viewers to go do the tiny bit of additional research required to connect the issue ad with the candidates, then somehow our election process is more pristine and free of the evil influence of money.

All it means is that the people who game the system the best - something MoveOn and Swift Boats were both fined for not a month ago - get their message out, while the people lacking the legal advice and the ability to pay the 6-figure fines the FEC throws around are gagged in the only medium that actually matters in this country.

For crying out loud, they considered requiring bloggers to register and, based on the literal reading of the law, they probably should have. Thank goodness someone came to their senses at the FEC. Or maybe not. Maybe if that had happened, people would react strongly enough to this.

I shouldn't have to go do legal research before telling someone people who I want them to vote for - even if I'm using money from other people to do so. I shouldn't have to have my messages analyzed to see what I intended by a government agency who will fine me if I "intended" the wrong thing.

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Will B
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quote:
Originally posted by aspectre:
Oh give me a break. Broadcasting is a government monopoly.
Allowing scumbags with money to monopolize the public commons has nothing to do with free speech, and everything to do with using money to suppress the public's right to use its own property.

Are you suggesting that "allowing scumbags with money to monopolize the public commons" is a bad thing?

Because that's exactly what McCain-Feingold does. It doesn't stop George Soros or Rupert Murdoch from using mass media to spread their views. It stops us from doing it. It's a crime for us to do political speech. It's still legal for the very rich to do it.

And it isn't just television. Local free papers are also now regulated. There have been lawsuits against DJs to make them stop taking sides on local issues. The FEC is also investigating regulating blogs, calling posts that contain political speech "contributions."

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ricree101
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Since the law is supposed to be about taking the money out of politics, perhaps a better alternative would be to cap the amount of money that a group could spend on political speech in a given period? I can still see some flaws, but it seems like it would be a reasonable way to keep people from "buying the election" while still not preventing people's right to free speech.
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The Pixiest
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But Dag! It's McCain! He'd never harm us! He's the savior of everything. He's so MODERATE!!!!!

*swoon*

*faint*

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Dagonee
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quote:
Since the law is supposed to be about taking the money out of politics, perhaps a better alternative would be to cap the amount of money that a group could spend on political speech in a given period? I can still see some flaws, but it seems like it would be a reasonable way to keep people from "buying the election" while still not preventing people's right to free speech.
It still requires that a government entity review speech to determine if it is "political speech."

Any time the government has to examine the content of private speech I'm suspicious. When it's specifically targeting the type of speech the first amendment was aimed at, I'm doubly suspicious.

There's a doctrine called the "chilling effect" doctrine that states that imprecise laws that will deter people from expressing protected speech is suspect under the First Amendment. The idea that misreading complex election laws can lead to 6-figure fines is definitely chilling.

I think the last paragraph in my previous post sums up my discomfort best. Three very smart judges disagreed as to whether the speech at issue in the case was legal under the law. You shouldn't need a lawyer to tell you it's safe to talk about politic in a particular way during an election, especially when there's a good chance the lawyer will be wrong.

quote:
But Dag! It's McCain! He'd never harm us! He's the savior of everything. He's so MODERATE!!!!!
I like McCain quite alot about some things, but this and the whole baseball steroids spectacle make me wonder.
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BlackBlade
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Dag: I think I agree with you on everything you have been saying. Obviously there is good intended with this bill, but the drawback IMO outweighs that good by a large margin.

What about Teddy Roosevelt? He may have had racist views but I love most of what he did while in office.

Perhaps McCain is similar in that regard, <shrugs>.

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Lyrhawn
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Put yourself in the shoes of the average voter back when TR was running and I doubt you'd have the slightest problem with his racist views.

Either way, I'd probably be very, VERY tempted to vote for either of the Roosevelts with little to no campaigning if they were alive today, depending on who they were running against.

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