Is The Bell Tolling For McCain-Feingold And Its Predecessors?

We've twice mentioned the legal wrangling surrounding the low-brow hit piece "Hillary: The Movie" (and its somewhat less popular sequel, "Hillary Takes Manhattan"). Today SCOTUS took the very unusual step of holding oral argument on the case before its normal term began. The Liberty Papers has a roundup of descriptions of and reactions to the argument, as well as a link to a recording of the argument.

It certainly sounds as if current limits on political advertising are headed for some sort of beating; it remains to be seen how bad the beating will be.

There are, of course, excellent policy arguments for the proposition that unrestrained speech about political campaigns has negative consequences for our Republic. Similarly, there are excellent arguments for the proposition that all sorts of speech is harmful: racial invective, ridicule, flag burning, pornography, reality shows, etc. Those policy arguments have not prevailed in the face of the First Amendment when it comes to flag burning, porn, and generally being an asshole. Perhaps SCOTUS is finally set to deliver a coherent, principled, and broad ruling that policy does not trump the First Amendment when it comes to political spending, either.

Last 5 posts by Ken White


  1. says

    I'm very curious to see the reaction if/when SCOTUS overturns McCain/Feingold. I suspect the reaction will be surprisingly muted – there's not really anyone who can say that, even without regard to free speech concerns, the law succeeded in making things better.

  2. David Schwartz says

    I agree. McCain/Feingold is kind of a failed experiment. You could tell that very few people were happy with where it has brought us.

    The post is directly on target. It seems like it would be easy to ban categories of "harmful" speech. The problem becomes when someone comes up to you and points out their non-harmful speech is banned too, and you can't figure out how to pass a law banning only "bad" speech without the government having to decide which speech is bad and which good and everyone having to worry that their speech will be deemed "bad" and thus a felony.