Hammer a stake into the heart of McCain-Feingold

The First Amendment, as rewritten under the McCain-Feingold campaign finance law: "Congress shall make no law ... abridging the freedom of speech, or of the press, except if it is funded by a corporation, unless it is a media corporation, or if the speech occurs just prior to an election, unless it is in the form of a book, which, even though the law covers books, too, the Federal Election Commission would never apply that law to books because we say so, though we said something entirely different a couple of months ago."

In an apoplexy of righteous indignation over the corrupting influence of filthy lucre on our political process, Congress in 2002 passed the Bipartisan Campaign Reform Act, which I prefer to call McCain-Feingold to remind everyone of the two culprits chiefly responsible for it, Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin.

It has created an impenetrable bureaucratic maze of legalese that has gagged those who wish to participate in election campaigns.

The case of "Hillary: the Movie" was reargued in front of the U.S. Supreme Court on Wednesday. A group called Citizens United tried to air a movie critical of presidential aspirant Hillary Clinton during the 2008 primary, but was blocked under threat of criminal felony prosecution under McCain-Feingold. Talk about abridging.

The exchanges between the justices and the attorneys arguing the case were nothing short of bizarre.

When the case was first argued in March, the government lawyers insisted books would be covered under the law, which Justice Samuel Alito said was "pretty incredible." But on Wednesday Solicitor General Elena Kagan backtracked, saying the FEC had never applied the law to books, but she did say pamphlets might be covered. Isn't a book just a really long pamphlet?

To Kagan's contention, Justice Antonin Scalia replied: "So you're -- you are a lawyer advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this. This statute covers it, but don't worry, the FEC has never done it. Is that going to comfort your client? I don't think so."

At another point, Justice Alito commented on the nebulous nature of the law and how it might be applied or misapplied. "Well, what if the particular -- what if the particular movie involved here had not been distributed by Video on Demand?" he asked. "Suppose that people could view it for free on Netflix over the internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater. Suppose the exact text of this was distributed in a printed form. In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited."

Any law that can be applied or not applied at the whim of some unelected bureaucrat is an invitation to tyranny.

The attorney for Citizens United, Theodore Olson, told the court Wednesday that "the most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates. We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls."

Two days earlier, Olson penned an op-ed for The Wall Street Journal. In that piece, Olson addressed succinctly the constitutional issue raised by the attempt to distinguish the money to pay for speech from the content of the speech.

"In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections," he writes. "And it responded to a nonproblem with a sledgehammer rather than a scalpel."

He also noted the loophole granted to the media in McCain-Feingold. This includes NBC, owned by GE; ABC, owned by Disney; and the corporations that own all the major newspapers, including The Wall Street Journal and The New York Times and the Las Vegas Review-Journal.

Olson rightly concludes this case is less about a corporation's right to speak, but more about our right to hear all the pertinent arguments at election time -- "it is about our right to hear those voices and to judge for ourselves who has the soundest message."

The justices have previously narrowly upheld McCain-Feingold while jettisoning some aspects. This is their opportunity to throw the whole thing out as anathema to the First Amendment.

Thomas Mitchell is editor of the Review-Journal and writes on the role of a free press and free speech. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.