New campaign law limits more than just finance

The Supreme Court decision Wednesday upholding most aspects of the campaign finance limitation law passed by Congress last year affirms that when it comes to a trendy fixation of the political class, the Constitution — even the First Amendment, on which this court has generally been not bad — means little or nothing.

Simple language like “Congress shall make no law” gives way to emotional rhetoric about the malign influence of money in politics (as if politics was otherwise a pristine calling), and out of that sentiment grows a 90-page statute, 1,000 pages of regulations and a 300-page Supreme Court decision regulating political speech.

Or, as Chapman University law school professor John Eastman put it Wednesday, there is now “more protection for pornography on the Internet than we give to core political speech 60 days before an election.”

He is referring to a provision in the law, which most observers expected the Supreme Court might overturn, that restricts election-time political ads by interest groups and others (from the NRA to abortion-rights groups), including a ban on ads that mention federal candidates in those candidates’ districts a month before a primary and 60 days before a general election.

Incredible. The time just before an election is when political speech should be most free, even though people know some of it will be scurrilous. Yet Congress asserts the right not only to regulate candidates (for which there is some tenuous justification, given that nobody is forced to run for office), but also independent groups that might want to influence an election. And the Supreme Court — specifically, Justices O’Connor, Stevens, Souter, Ginsburg and Breyer — lets it happen.

Roger Pilon, vice president for legal affairs at the libertarian Cato Institute, said, “Nobody thought the 60-day ban on speech would be upheld, yet the court affirmed even that. What’s the point of having a court if it won’t protect the Constitution? This is a (court) majority that thinks like a legislature.”

Several aspects of the enthusiasm for campaign finance restrictions are especially dismaying.

First, these are restrictions, as Pilon said, “in the very area (besides religion) the First Amendment was meant to protect — political speech.”

Second, finance limits nullify the democratic myth: The idea is that the political process is supposed to be the way the people give the government its marching orders, but when the government regulates the political process, then the government controls the process that is supposed to control it.

Third, restrictions on political fund-raising and spending are blatantly calculated to protect incumbents, who have built-in electoral advantages, from well-financed challengers.

This was truly appalling legislation and a truly appalling decision.