Today, the Supreme Court heard an important case that could greatly affect the McCain-Feingold campaign laws. It involves a movie highly critical of Hillary Clinton which was originally scheduled for release during the Democratic primaries but was stopped by judges concerned with its legality.
This case illustrates the inherent problems with McCain-Feingold. Namely, it forces judges to make decisions about what is and isnâ€™t free speech. In this case, the Supreme Court must now decide the line between an allowable documentary and an illegal campaign ad.
Arguing that a movie and a campaign ad are the same could have adverse consequences for the McCain-Feingold law, Justice Anthony Kennedy said. “If we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall,” Kennedy said.
Citizens United wanted to pay for its documentary to be shown on home video-on-demand, and for ads promoting the movie to be shown in key states while the former New York senator was competing with President Barack Obama for the Democratic presidential nomination.
No one is arguing that this movie isnâ€™t an attempt to discredit and politically damage Hillary Clinton. The question is: do the makers have a right to advertise and distribute their movie as any other movie-maker would OR are they practicing a form of restricted speech that must conform to specific rules about when and how the message can be shared?
Do we really want to be giving judges the power to decide what is and what is not allowable political speech? McCain-Feingold may have arisen from a noble enough urge (to keep money from corrupting politics) but its effect has been to dampen free speech. For those who support the law, let me ask: have elections been any â€œcleanerâ€ or has money played any less of a role in the years since McCain-Feingold became law? Even if the law is, in principle, â€œgood,â€ it hasnâ€™t been good enough in practice to justify the restrictions it creates.
I doubt the Supreme Court will strike down McCain-Feingold, even if they rule in favor of Citizens United. But maybe theyâ€™ll chop away a good bit of its power. Itâ€™s a law which borders too closely on unconstitutionality for us to feel comfortable with it wielding a lot of power.