29 Sep 2004 Criticizing Politicians

The staff of Congressman Roscoe Bartlett (R-MD) is circulating on Capitol Hill an article by Jonathan Rauch from the September 24 National Journal about free speech problems within McCain-Feingold.

It’s a scary read. I excerpt a bit:

Fix The McCain-Feingold Law. Oops — Can I Say That?

by Jonathan Rauch

Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years.

An exaggeration? Judge for yourself. Consider the sorts of cases the Federal Election Commission now finds itself deciding:

Item — In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy’s pro-gun documentary (The Rights of the People) on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as ‘electioneering communication.’ Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.

Item — On September 9, the FEC ruled that a conservative group called Citizens United was not a ‘media organization’ and therefore could not use unrestricted money to broadcast ads marketing a book and film critical of Democratic presidential candidate John Kerry. ‘Not everyone can be a media organization,’ said one FEC commissioner.

Item — Also on September 9, the FEC ruled that the Ripon Society, a Republican group, could run TV ads touting the anti-terrorism efforts of ‘Republicans in Congress’ because no political candidate was referred to in the ads.

Item — That day, the FEC also ruled that a Wisconsin car dealership, called the Russ Darrow Group, could continue using its own name in its car ads during the election season. Russ Darrow Jr., the patriarch of the company and father of its current president, was running for Senate in Wisconsin (he lost in the primary). The FEC found that the dealership’s ads were not ‘electioneering’ because they did not feature the candidate himself.

Set aside how you or I might have decided any of these cases. Focus on the fact that federal bureaucracies — the FEC and ultimately the federal courts — are now in the business of making such decisions. ‘That’s where we’ve gotten to today,’ FEC Chairman Bradley Smith, a critic of the law, said in an interview. ‘Can a car dealership run ads?…'”

There’s lots more.

Addendum: Thanks for the comments on this post, Sean, with which I heartily agree. The Supreme Court decision was flat wrong, Bush should never have signed this legislation in the first place, and those Congressmen who think themselves above criticism should be ashamed of themselves.