This decision was not unexpected, but it will present dramatic challenges for those of us who believe that the political system is awash in cash. The 5-4 decision, which found that a film essentially attacking Hillary Clinton as a danger to the nation, was protected speech and that provisions of federal election law that prevented its release violated the First Amendment.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The issue is a thorny one. Money has overrun the system and squeezed out the voices of regular folks, but the McCain-Feingold restrictions on issue ads always has struck me as an infringment on the rights of political groups to speak on political issues.
Consider the flip test on this one: A group like MoveOn or some other liberal organization creates a documentary on George W. Bush that essentially is commentary and plays like a newspaper editorial critical of the then-president. The group wants to release the film to theaters in September or October of 2004 so that it can affect the campaign debate.
Should it be allowed? And what restrictions should be imposed? That is the crux here.
Certainly, this kind of communication should be disclosed, but should it be banned? And is it the best way to starve the system of the cash that is corrupting it?
I remain a proponent of public financing, which I believe is the best way to control this. But I doubt we’ll be hearing anyone in Washington go down this path. Instead, look for the political classes to look for some other way, far less effective (or constitutional) way to address the issue.
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Read poetry at The Subterranean.
Suburban Pastoral, a chapbook by Hank Kalet, available here.