Commentary Magazine


Topic: campaign-finance law

What Judges Should Do

George Will writes:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’s expertise in regulating political speech.

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Will has it wrong. There is no roving mandate for the Court to protect liberty (or income equality or anything else) from depredations of any sort. The Court — like all courts engaged in textual interpretation — has a single mandate, one consistent with democratic governance and with the structure of the Constitution: to divine the meaning and the intent of the Constitution and the statutes at issue in the cases that come before it.

As for the two cases Will cites, they weren’t really about deferring to other branches of the government at all. In both cases, what was at stake was the meaning of explicit restrictions on the government contained in the Constitution, specifically the Fifth Amendment Takings Clause and the First Amendment. It’s not the job of the Court to decide how much “deference” this or that law requires, but rather to ask: does the Constitution permit Congress or the states to do this? In Kelo, the Court seemingly read out of the Fifth Amendment the “public use” requirement for exercise of eminent domain (allowing the government to hand property from one private owner to another) and in Citizens United the Court robustly defended core political speech protected by the language of the First Amendment.

There is a great temptation to devise all sorts of rules and tests for justices. But conservatives go astray when they choose to devise shiny new rationales for judging. The tried and true is perfectly sufficient: interpret the text, treat all litigants impartially, and put aside political considerations.

George Will writes:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’s expertise in regulating political speech.

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Will has it wrong. There is no roving mandate for the Court to protect liberty (or income equality or anything else) from depredations of any sort. The Court — like all courts engaged in textual interpretation — has a single mandate, one consistent with democratic governance and with the structure of the Constitution: to divine the meaning and the intent of the Constitution and the statutes at issue in the cases that come before it.

As for the two cases Will cites, they weren’t really about deferring to other branches of the government at all. In both cases, what was at stake was the meaning of explicit restrictions on the government contained in the Constitution, specifically the Fifth Amendment Takings Clause and the First Amendment. It’s not the job of the Court to decide how much “deference” this or that law requires, but rather to ask: does the Constitution permit Congress or the states to do this? In Kelo, the Court seemingly read out of the Fifth Amendment the “public use” requirement for exercise of eminent domain (allowing the government to hand property from one private owner to another) and in Citizens United the Court robustly defended core political speech protected by the language of the First Amendment.

There is a great temptation to devise all sorts of rules and tests for justices. But conservatives go astray when they choose to devise shiny new rationales for judging. The tried and true is perfectly sufficient: interpret the text, treat all litigants impartially, and put aside political considerations.

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Lawyers Should Cheer

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

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Schumer’s End Run on the Court Hasn’t a Chance

Politics is never short of irony. It was predictable that the Democrats would introduce legislation that attempted to circumvent the Supreme Court’s recent decision striking down campaign-finance laws that sought to restrict political speech. To justify this stand, they claim they are standing up to “corporate America.” But it’s more than a little ironic that the Senate sponsor of this bill is Charles Schumer of New York, the man who has spent most of the past decade helping the Democrats raise big bucks from, you guessed it, corporate America.

The bill, as described in today’s New York Times will be a patchwork of restrictions as well as disclosure requirements for expenditures. But in spite of the fact that Schumer and Rep. Chris Van Hollen claim their bill will comply with the Supreme Court’s interpretation of the law, it is pretty clear that it does not. The ruling in Citizens United v. Federal Election Commission specifically prohibited bans aimed at silencing specific groups or classes of persons or corporations. But the Democrat bill, though it targets corporations that are politically unpopular — government contractors, recipients of federal bailout money, and foreign corporations — clearly contravenes the Court’s ruling. This attempt to prohibit political commercials paid for by such groups is exactly the sort of thing that the majority ruling singled out as a violation of the First Amendment.

The Times quotes Bradley Smith, the former chair of the Federal Election Commission and the driving force behind the movement to overturn such unconstitutional infringements of free speech, as saying that the Democrats’ bill obviously flouts the law. Since the sponsors of the bill have presented it as a way of curbing the exact sort of spending that the Court said was legal, all he would have to do to overturn this piece of legislation is to merely quote its authors.

Running against “corporate America” is always good politics, but citizens do not lose their right to speak out on political issues or elections when they band together to form interest groups or corporations. The goal of Schumer’s bill, like the McCain-Feingold campaign-finance law that spawned the Citizens United case, is to silence entire classes of political speakers. The only winners in such a scheme are not the people or the principle of fair elections but the politicians and media corporations that have always been able to spend as much as they like in pursuit of whatever political cause or candidate they prefer. While more disclosure of expenditures is always welcome, it must also be done in such a way as to make compliance feasible. As the 2008 election proved, when Barack Obama raised vast sums on the Internet, full disclosure takes time and must be carefully done lest confidential financial information (like individual credit-card numbers) be published along with the names of contributors.

It is unlikely that the Schumer–Van Hollen bill will get anywhere this year despite the histrionics of the sponsors. But it is worth noting the blatant hypocrisy of Schumer, the poster child for crony capitalism whose fundraising efforts have been the nexus of a flood of corporate contributions to the Democratic party in recent years, claiming to be the defender of the ordinary guy against the influence of corporate money.

Also interesting is the silence of the former paladin of campaign-finance reform: Senator John McCain. If there was one issue above all others that alienated the Republican base from the 2008 GOP presidential candidate it was his championing of a “reform” that sought to restrict political speech. Facing a right-wing primary challenge for re-election this year, McCain’s office could only say that “the Supreme Court has spoken.” Yes, it has. And while President Obama and Schumer may play the demagogue on this issue, supporters of free speech can be thankful that the conservative majority on the Court has, at least for now, had the last word on this issue.

Politics is never short of irony. It was predictable that the Democrats would introduce legislation that attempted to circumvent the Supreme Court’s recent decision striking down campaign-finance laws that sought to restrict political speech. To justify this stand, they claim they are standing up to “corporate America.” But it’s more than a little ironic that the Senate sponsor of this bill is Charles Schumer of New York, the man who has spent most of the past decade helping the Democrats raise big bucks from, you guessed it, corporate America.

The bill, as described in today’s New York Times will be a patchwork of restrictions as well as disclosure requirements for expenditures. But in spite of the fact that Schumer and Rep. Chris Van Hollen claim their bill will comply with the Supreme Court’s interpretation of the law, it is pretty clear that it does not. The ruling in Citizens United v. Federal Election Commission specifically prohibited bans aimed at silencing specific groups or classes of persons or corporations. But the Democrat bill, though it targets corporations that are politically unpopular — government contractors, recipients of federal bailout money, and foreign corporations — clearly contravenes the Court’s ruling. This attempt to prohibit political commercials paid for by such groups is exactly the sort of thing that the majority ruling singled out as a violation of the First Amendment.

The Times quotes Bradley Smith, the former chair of the Federal Election Commission and the driving force behind the movement to overturn such unconstitutional infringements of free speech, as saying that the Democrats’ bill obviously flouts the law. Since the sponsors of the bill have presented it as a way of curbing the exact sort of spending that the Court said was legal, all he would have to do to overturn this piece of legislation is to merely quote its authors.

Running against “corporate America” is always good politics, but citizens do not lose their right to speak out on political issues or elections when they band together to form interest groups or corporations. The goal of Schumer’s bill, like the McCain-Feingold campaign-finance law that spawned the Citizens United case, is to silence entire classes of political speakers. The only winners in such a scheme are not the people or the principle of fair elections but the politicians and media corporations that have always been able to spend as much as they like in pursuit of whatever political cause or candidate they prefer. While more disclosure of expenditures is always welcome, it must also be done in such a way as to make compliance feasible. As the 2008 election proved, when Barack Obama raised vast sums on the Internet, full disclosure takes time and must be carefully done lest confidential financial information (like individual credit-card numbers) be published along with the names of contributors.

It is unlikely that the Schumer–Van Hollen bill will get anywhere this year despite the histrionics of the sponsors. But it is worth noting the blatant hypocrisy of Schumer, the poster child for crony capitalism whose fundraising efforts have been the nexus of a flood of corporate contributions to the Democratic party in recent years, claiming to be the defender of the ordinary guy against the influence of corporate money.

Also interesting is the silence of the former paladin of campaign-finance reform: Senator John McCain. If there was one issue above all others that alienated the Republican base from the 2008 GOP presidential candidate it was his championing of a “reform” that sought to restrict political speech. Facing a right-wing primary challenge for re-election this year, McCain’s office could only say that “the Supreme Court has spoken.” Yes, it has. And while President Obama and Schumer may play the demagogue on this issue, supporters of free speech can be thankful that the conservative majority on the Court has, at least for now, had the last word on this issue.

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Free Speech, Not the GOP, Is the Winner in Court Campaign-Finance Ruling

Today’s Supreme Court ruling striking down provisions of the McCain-Feingold federal campaign-finance law is a tremendous victory for free speech in the United States. The 5-4 decision in Citizens United v. Federal Election Commission upholds the principle that that 2002 law and other similar attempts to regulate campaign finance flouted, namely, that the government should not regulate political speech.

The case grew out of a 2008 federal ban on the showing of a documentary film, Hillary: The Movie, during the presidential primaries in which Hillary Clinton, the object of the movie’s criticism, was a candidate. McCain-Feingold allowed the Federal Election Commission to stop the showing of the film because a corporation produced it, even though the corporation in question was a nonprofit. This case aptly illustrated the way this law did not so much protect the electoral process from the corrupting influence of money as it protected politicians from the effects of political speech that they did not like. Far from bolstering the democratic process, McCain-Feingold suppressed it. Like just about every other campaign-finance law that has been passed since the 1970s, when the Watergate scandal gave impetus to a drive to “reform” election spending, this law did not eliminate the influence of money on politics, but it did play favorites as to which sort of speech may or may not be legal. While efforts to bring transparency into campaign finance remain laudable, the process by which money began to be shunted first into political action committees and then, in the wake of McCain-Feingold, into new classes of unaccountable groups did nothing to make the system fairer or cleaner. Instead, it granted a government agency the power to regulate or suppress the one kind of speech that the founders of our republic would have agreed was inviolate: political speech. The court has now chipped away at this expansion of federal power to allow corporations and other groups the freedom to advocate on elections as they please.

The responses to this ruling from some in the political class are predictable. President Obama has issued a call to Congress to pass legislation to overturn the will of the courts, something that we trust the new absence of a filibuster-proof majority for the Democrats will render impossible.

Interestingly, among the first reactions was a blog post by New York Times reporter Jeff Zeleny, who claimed that, “at first blush, Republican candidates would seem to benefit from this seismic change in how political campaigns are conducted in America.” To back this assertion up, he quoted the president’s demagogic statement that claimed the “Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

As Zeleny also noted, labor unions and a host of Left-leaning groups are now also free to spend money to publicize their views, as they like. It should also be pointed out that the notion that big business is a dependable backer of the GOP is a myth. The crony capitalism that the bank bailouts have highlighted in the past two years has aptly illustrated the fact that many industries, including the denizens of Wall Street, have a stronger loyalty to corporate welfare that benefits them than they do to the principles of free enterprise. The steady flow of money from firms such as Goldman, Sachs (the principal survivor and beneficiary of the latest shakedowns) to Democratic candidates like Obama is proof of this.

The point here is that more political speech is not a danger to the republic; it is instead the lifeblood of democracy. The only ones to gain from the suppression of views via campaign-spending laws are those politicians who are the subject of critical scrutiny. Acting in the name of “reform,” campaign-finance-restriction advocates have sought to restrict political speech, effectively empowering the politicians and the mainstream media at the expense of the electorate. In a democracy, the people must be free to sort out the views of a host of disparate elements. The free flow of critical advertisements and independent documentaries such as Hillary: The Movie challenge the monopoly of public expression that such a system breeds. Let’s hope this ruling marks the beginning of the end of an era in which the political class used its legislative power to silence their critics.

Today’s Supreme Court ruling striking down provisions of the McCain-Feingold federal campaign-finance law is a tremendous victory for free speech in the United States. The 5-4 decision in Citizens United v. Federal Election Commission upholds the principle that that 2002 law and other similar attempts to regulate campaign finance flouted, namely, that the government should not regulate political speech.

The case grew out of a 2008 federal ban on the showing of a documentary film, Hillary: The Movie, during the presidential primaries in which Hillary Clinton, the object of the movie’s criticism, was a candidate. McCain-Feingold allowed the Federal Election Commission to stop the showing of the film because a corporation produced it, even though the corporation in question was a nonprofit. This case aptly illustrated the way this law did not so much protect the electoral process from the corrupting influence of money as it protected politicians from the effects of political speech that they did not like. Far from bolstering the democratic process, McCain-Feingold suppressed it. Like just about every other campaign-finance law that has been passed since the 1970s, when the Watergate scandal gave impetus to a drive to “reform” election spending, this law did not eliminate the influence of money on politics, but it did play favorites as to which sort of speech may or may not be legal. While efforts to bring transparency into campaign finance remain laudable, the process by which money began to be shunted first into political action committees and then, in the wake of McCain-Feingold, into new classes of unaccountable groups did nothing to make the system fairer or cleaner. Instead, it granted a government agency the power to regulate or suppress the one kind of speech that the founders of our republic would have agreed was inviolate: political speech. The court has now chipped away at this expansion of federal power to allow corporations and other groups the freedom to advocate on elections as they please.

The responses to this ruling from some in the political class are predictable. President Obama has issued a call to Congress to pass legislation to overturn the will of the courts, something that we trust the new absence of a filibuster-proof majority for the Democrats will render impossible.

Interestingly, among the first reactions was a blog post by New York Times reporter Jeff Zeleny, who claimed that, “at first blush, Republican candidates would seem to benefit from this seismic change in how political campaigns are conducted in America.” To back this assertion up, he quoted the president’s demagogic statement that claimed the “Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

As Zeleny also noted, labor unions and a host of Left-leaning groups are now also free to spend money to publicize their views, as they like. It should also be pointed out that the notion that big business is a dependable backer of the GOP is a myth. The crony capitalism that the bank bailouts have highlighted in the past two years has aptly illustrated the fact that many industries, including the denizens of Wall Street, have a stronger loyalty to corporate welfare that benefits them than they do to the principles of free enterprise. The steady flow of money from firms such as Goldman, Sachs (the principal survivor and beneficiary of the latest shakedowns) to Democratic candidates like Obama is proof of this.

The point here is that more political speech is not a danger to the republic; it is instead the lifeblood of democracy. The only ones to gain from the suppression of views via campaign-spending laws are those politicians who are the subject of critical scrutiny. Acting in the name of “reform,” campaign-finance-restriction advocates have sought to restrict political speech, effectively empowering the politicians and the mainstream media at the expense of the electorate. In a democracy, the people must be free to sort out the views of a host of disparate elements. The free flow of critical advertisements and independent documentaries such as Hillary: The Movie challenge the monopoly of public expression that such a system breeds. Let’s hope this ruling marks the beginning of the end of an era in which the political class used its legislative power to silence their critics.

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Supreme Court Vindicates Political Speech, Pulverizes McCain-Feingold

In a landmark 5-to-4 ruling, the Supreme Court today in Citizens United v. FEC struck down major portions of the McCain-Feingold campaign-finance law. The Court left in place the disclosure requirement for corporations and the disclaimer requirement that identifies whether an ad is not paid for by the campaign. But little else remains. The Court overruled the highly controversial 1990 decision in  Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. As this report notes:

The majority, invoking the Constitution’s free-speech clause, said the government lacks a legitimate basis to restrict independent campaign expenditures by companies. . .“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Anthony Kennedy wrote for the majority. Companies, which had been barred since 1947 from spending money in support or opposition to a candidate, potentially now will pump millions of dollars into campaigns. Companies, and possibly labor unions as well, will be able to use their general-treasury dollars to punish or reward lawmakers for their votes on legislation.

This is a vindication of the First Amendment and a victory for the protection of political speech, which is at the heart of our political system. It will certainly increase the amount of speech. Even the New York Times recognizes this (well, sort of):

The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.

The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

Republicans may see some tactical advantage here, as corporations wary of the Obama regime may now help fund Republican Senate and House candidates seeking to block the Obama anti-business agenda. But it would be a mistake to assume that corporations that seem to have perfected the art of feeding at the government trough and which are vulnerable to the ever-increasing reach of the Obama administration won’t cover their bets by giving to both sides. Moreover, this is a victory plain and simple for the Constitution and for the essential notion that if there is a “problem” with certain types of speech, the solution is more speech, not the heavy hand of government censors.

In a landmark 5-to-4 ruling, the Supreme Court today in Citizens United v. FEC struck down major portions of the McCain-Feingold campaign-finance law. The Court left in place the disclosure requirement for corporations and the disclaimer requirement that identifies whether an ad is not paid for by the campaign. But little else remains. The Court overruled the highly controversial 1990 decision in  Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. As this report notes:

The majority, invoking the Constitution’s free-speech clause, said the government lacks a legitimate basis to restrict independent campaign expenditures by companies. . .“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Anthony Kennedy wrote for the majority. Companies, which had been barred since 1947 from spending money in support or opposition to a candidate, potentially now will pump millions of dollars into campaigns. Companies, and possibly labor unions as well, will be able to use their general-treasury dollars to punish or reward lawmakers for their votes on legislation.

This is a vindication of the First Amendment and a victory for the protection of political speech, which is at the heart of our political system. It will certainly increase the amount of speech. Even the New York Times recognizes this (well, sort of):

The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.

The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

Republicans may see some tactical advantage here, as corporations wary of the Obama regime may now help fund Republican Senate and House candidates seeking to block the Obama anti-business agenda. But it would be a mistake to assume that corporations that seem to have perfected the art of feeding at the government trough and which are vulnerable to the ever-increasing reach of the Obama administration won’t cover their bets by giving to both sides. Moreover, this is a victory plain and simple for the Constitution and for the essential notion that if there is a “problem” with certain types of speech, the solution is more speech, not the heavy hand of government censors.

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The New York Times vs. Floyd Abrams

The Supreme Court heard oral arguments yesterday in a case involving the McCain-Feingold campaign-finance law, and touching on basic issues of freedom of speech and of the press.

I read about it in the New York Times in an article by Linda Greenhouse, whose credibility as an objective reporter of the Supreme Court’s doings was forever shredded, at least for me, by a speech she gave at Harvard last summer lamenting, among other things, the Right’s “sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”

Still, even if Greenhouse came out of the ideological closet in a way that makes a mockery of the Times’s posture of political neutrality, as best I can tell she did a creditable job in the basic task of laying out the facts of who said what in the case that was before the Court yesterday. The provision of McCain-Feingold in question, which prohibits certain kinds of advertisements just before an election, had been upheld by the Supremes by a margin of 5 to 4 in a December 2003 decision, which is now being revisited.

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The Supreme Court heard oral arguments yesterday in a case involving the McCain-Feingold campaign-finance law, and touching on basic issues of freedom of speech and of the press.

I read about it in the New York Times in an article by Linda Greenhouse, whose credibility as an objective reporter of the Supreme Court’s doings was forever shredded, at least for me, by a speech she gave at Harvard last summer lamenting, among other things, the Right’s “sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”

Still, even if Greenhouse came out of the ideological closet in a way that makes a mockery of the Times’s posture of political neutrality, as best I can tell she did a creditable job in the basic task of laying out the facts of who said what in the case that was before the Court yesterday. The provision of McCain-Feingold in question, which prohibits certain kinds of advertisements just before an election, had been upheld by the Supremes by a margin of 5 to 4 in a December 2003 decision, which is now being revisited.

The New York Times has a stake in this case. Although the newspaper positions itself as a champion of the First Amendment—and has even intrepidly broken federal laws that crimp its freedom to print whatever it pleases—its editorial page nevertheless avidly supports the restrictions on issue ads contained in McCain-Feingold, insouciantly declaring that the “Constitution permits reasonable limits designed to prevent what the Court has called ‘corruption and the appearance of corruption.’” The law, it says flatly, “does not prohibit any speech.”

But liberals are deeply riven over McCain-Feingold. And the Times is itself sharply at odds with the leading First Amendment lawyer of our era, Floyd Abrams—who also happens to be the attorney to whom the paper has turned for defense in cases ranging from the Judith Miller affair back to the Pentagon Papers in the early 1970’s.

In his exceptionally compelling memoir, Speaking Freely, Abrams recounts a 2003 conversation with Alex Gigante, general counsel of Penguin Group USA, which was poised to publish a new book about Senator John Kerry, then in the midst of a campaign for the presidency:

“Is there anything in the new campaign finance law that could be problematic?” Gigante asked me. “Yes,” I said. “There is one thing: you can’t advertise the book on radio or television at all for the entire month of July leading up to the Democratic convention, for almost all of September, and for every day of October.” That antidemocratic achievement, I said, was directly attributable to McCain-Feingold.

Gigante listened to me in disbelief and then asked the unavoidable question: “Is that law constitutional?”

“Not under my First Amendment,” I told him. “Not under mine.”

Abrams calls the provisions of McCain-Feingold governing political advertising “nothing less than outright suppression of speech of the most odious nature.” Could he have been any clearer?

Next time the Times cites the First Amendment when it publishes a vital national-security secret in violation of the law, let us not forget the hypocrisy of its position on McCain-Feingold. And a health warning: do not hold your breath waiting to read about this internecine dispute in the news columns of Linda Greenhouse. It could cause asphyxia.

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