McCain-Feingold is about to eviscerated by the activist conservative Supreme Court. Overturning a century of regulatory restrictions on the corrosive influence of money on political outcomes is nothing short of legislating from the bench.
What makes this all but certain change in campaign law different is the presense of the great and all powerful conservative authoritarians arguing that, according to lawyer Ted Olson, "You can't speak without money." Hear that very statement from the NPR audio clip below. I couldn't make something like this up.
NPR's legal affairs correspondent Nina Totenberg reported this in March 2009:
Arguing the other side of the case on behalf of the anti-Hillary group today was lawyer Ted Olson. He told the justices that the group's First Amendment right to express itself is being smothered by, quote, "One of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state."
Justice Souter: If this documentary were produced by General Motors, would your argument be the same?
Olson said, No it would not.
Justice Souter: Then how would we draw the line between this and corporate political activity banned under the law? Why couldn't your group have produced and aired the same film using funds from a political action committee?
Justice Breyer: This movie is not a musical comedy, after all.
Answer: Setting up a political action committee and reporting contributions would be burdensome for a small organization like this. Long-form ads, said lawyer Olson, are different from short 30 second ads. A 90 minute version is protected political expression and cannot be regulated.
Justice Kennedy: If a short 30 second or one minute ad can be regulated, you want me to write an opinion that says, well, if it's 90 minutes then that's different? It seems to me 90 minutes is a lot more powerful.
In short, Kennedy seemed to be suggesting: either it's all constitutional or all unconstitutional.
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