The Lonely Centrist

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Wednesday, April 26, 2006

The Backwards First Amendment

"Why is it necessary to have the senators' names in there?" asked U.S. District Judge Colleen Kollar-Kotelly.

The above is the Boston Globe reporting on oral argument in Christian Civic League v. Federal Election Commission.

So this is what the First Amendment has come to: "Why do you have to say that?" I don't have a transcript of the hearing, but nobody has reported any of the three judges hearing the case asking the Feds why the Civic League shouldn't be able to have the Senators names in there.

To back up a bit, what the Civic League is asking is to run a radio ad that says, "Unfortunately, your senators voted against the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins immediately and urge them to support the Marriage Protection Amendment when it comes to a vote in early June." Under the McCain-Feingold law, which both of Maine's Senators, Olympia Snowe and Susan Collins, supported, this ad is illegal because Christian Civic League is an incorporated entity. This means no broadcast ads that even mention a candidate within 30 days of a primary election or 60 days of a general election. The reason, in theory, is that such ads might affect an election. That hardly seems like a legit reason for limiting them, but it is the law, upheld as constitutional by your United States Supreme Court. Yet here, Senator Collins is not up for re-election until 2008; Senator Snowe is up for re-election this year, with a primary in early June. But it's worth noting that she has no opponent in the primary. None. Not even token opposition or a write-in opponent. Still, the Civic League can't even mention her in an ad as the Senate prepares to vote. Better that the voters of Maine just stay ignorant. And according to Judge Kollar-Kotelly, the onus is on the Civic League to justify the need for its speech - the exact opposite of how the First Amendment ought to work.

There is, of course, an easy answer to Kollar-Kotelly. Surveys show that over half of Americans cannot name their U.S. Senators. So just saying, "Call your Senators" doesn't give most Americans any sense of whom to call, nor what those senators think. So if you want the ad to be effective, you need to tell people specifically what to do. But the bigger point, of course, is that the Civic League shouldn't have to put up with this malarky.

According to the Globe, "The three judges who heard the arguments expressed strong doubts that the ad could be broadcast as worded and still comply with the Bipartisan Campaign Reform Act of 2002 [McCain-Feingold]." Fortunately (if one can use that term in such a ridiculous case), the Federal Election Commission seems determined to take an already outrageous law to ridiculous extremes, and so may give the judges no choice but to rule in favor of the Civic League. According to the Commission, the ad would be illegal even if it didn't name the Senators. The Commission's attorneys argued that even saying "call your Senators," without naming them, is illegal under the law. Even Kollar-Kotelly ought to be able to figure out that you have to put that in the message, and that to rule in favor of the FEC means that it will be extremely difficult for voters to learn about pending legislation in Congress and what they can do to try to influence the outcome.

But it seems to this Centrist that we've got the First Amendment backwards when the judge can lean over the bench and challenge the litigant, essentially saying, "why should I let you say that?"

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