Saturday Evening Judicial Reiew Post #15
As we continue in our theme of individual liberty from last week where we discussed the commerce clause, we want to focus today on free speech.
There is no concept of freedom dearer to the hearts of the American people than that of free speech. The Constitution states in the first amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
For our purposes today the first right in the Bill of Rights following the establishment clause states:
“Congress shall make no law…abridging the freedom of speech.”
Today we want to focus on one particular encroachment on this all important right that has recently been passed by both House and Senate, signed into law by President Bush, and is now being enforced by the Supreme Court of the United States. That law is called The Bipartisan Campaign Reform Act of 2002. The law was challenged by it’s leading opponent in the Senate during the bill’s debate, Senator Mitch McConnell who followed the appeal to McCONNELL, UNITED STATES SENATOR, et al. v. FEDERAL ELECTION COMMISSION et al before the Supreme Court.
We all know the outcome of the case, and have recently seen the effects in how the election progressed in 2004. With the explosion of 527 organizations, and bloggers.
We wrote extensively concerning how this law got through both houses of Congress finally to rest on the President’s desk for signature. Our previous article, We Have Been Stung, quoted a New York Post article, Buying ‘Reform’ which exposed a tape “of a conference held at USC’s Annenberg School for Communication in March of 2004” which demonstrated that in fact it was a highly motivated, and well financed media blitz designed to make the public believe that campaign finance reform was needed. It was so effective, the House and Senate overwhelmingly approved the law, and the President signed it fearing a backlash from a contrived public approval.
If PresidentReagan’s biggest mistake was his appointment of Justice Sandra Day O’Connor to the Supreme Court, President Bush’s biggest mistake was in trusting the Supreme Court to adhere to the Constitution when adjudicating this law.
What is the extent of this fine piece of legislation? Mark R. Levin quotes election law experts Jan Witold Baran and Barbara Van Gelder on page 154 of his book Men In Black:
“Prior to..[McCain-Feingold], the Justice Department rarely initiated criminal prosecutions under the Federal Election Campaign Act of 1971. Accordingly, most enforcement actions occurred under the Federal Election Commission’s civil authority to seek fines.
The [McCain-Feingold law] increases the number of campaign finance violations that may be charged as felonies and boosts maximum penalties to two years of incarceration for even the least serious offenses and five years for more serious offenses. [Its] broad sweep offers criminal penalties to prosecutors for violations involving the making, receiving or reporting of any prohibited contribution, donation or expenditure. The [law] sets the maximum penalty for aggregate violations exceeding $25,000 during a calendar year at five years of imprisonment. Campaign finance violations aggregating between $2,000 and $25,000 during a calendar year carry a maximum penalty of one year in jail…[Under certain circumstances, these penalties can be increased.]
One could very easily end up in jail for violating a little known or explained law which in fact is a violation of the Constitution which grants you the right to exercise your free speech in this now unlawful manner.
We have written here and here concerning the effect of this law and it’s ramifications for bloggers. Blogs like the one you are currently reading may eventually be shut down by FEC regulators or face fines and imprisonment. These regulations are only the tip of the iceberg in the BCRA of 2002.
How much of your right to free speech are you willing to give up? You could be cited under this law for sending an e-mail promoting your political candidate of choice, if done too often or within the incorrect time frame before an election.
Finally, again quoting Levin’s Book, Men In Black, he says:
“These laws are passed by the very incumbent politicians who benefit from silencing their opponents. A representative republic cannot remain a republic for long when its representatives become increasingly immune from public scrutiny and criticism.”
Our thanks once again to Mark R. Levin for writing his tremendous book, Men In Black. Buy this book and read it!
We would hope that by reading these articles you would become a more informed citizen, and as a result would get involved in the political process.
