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Congress shall make NO law...

By Scott Tibbs, September 15, 2009

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. -- The First Amendment

The First Amendment is beautiful in its simplicity and perspective. The Founders assumed that we all have a certain God-given rights, so they did not write the amendment to grant those rights, but to make it illegal for government to infringe on our rights. They knew that politicians would always find an excuse to limit freedom of speech for the "common good." In an age where the primary means of protecting our rights is holding government accountable, free speech is critical.

Of course, not all politicians see it that way. John McCain authored a campaign finance "reform" bill several years ago to limit the influence of "big money" in politics. Of course, it just so happens to benefit incumbents like McCain when campaign funds are restricted. McCain-Feingold (M-F) was the primary reason I voted against the Republican nominee for President last year and instead cast my ballot for the Libertarian candidate.

Now, campaign finance "reform" faces a test as the makers of "Hillary: The Movie" (made to explain why voters should reject Hillary Clinton's bid for the Presidency) are challenging the constitutionality of M-F's limits on political speech close to an election. Malcolm Stewart, deputy Solicitor General for President Obama, argued in march that the government has the authority to ban books "if the book contained the functional equivalent of express advocacy" and was funded by a corporation.

Many Leftists are hanging their hat on the idea that a corporation does not have free speech rights the same way individuals do. The problem is that they miss the literal text of the First Amendment, which is a limitation on government rather than an enumeration of rights. We do not have to consider corporations to be the equal of "persons" (including taking it to the laughable extreme of allowing corporations to vote, something no serious person has advocated) to recognize that Congress overstepped its authority when it passed M-F.

All of this is a smokescreen. If the federal government has the authority to regulate speech by "corporations" leading up to an election, then what is stopping Congress from regulating what can be said on news broadcasts? If two or more pundits are discussing the Presidential race on Meet The Press, would they be prohibited from expressing support, implicitly or explicitly, for a specific candidate? How far can regulations passed by Congress go? What about newspaper editorial pages and candidate endorsements, which are fairly common each election? Would they be classified as impermissible electioneering? This case has serious implications for free speech and freedom of the press.