Freedom of Speech: Interpret the Legalese here?

[seawasp]

Several posts and other sites have talked about the McCain-Feingold Campaign Reform Act (available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ155.107)
as basically saying "Big media companies and some individual people can talk about candidates before elections, but no one else can".

I'm having a hard time parsing the legalese there to see what it REALLY says. Anyone out there have better Legal-Fu and an ability to show how it interprets?

Comments

[aardy.livejournal.com]

I'm giving it a shot, but so far have only gotten through the first section, which is all about the soft money of candidates, political committees and their sock puppets, and it sounds like your main concern is with the second & third parts.

This is not a short document, and summarizing "what all does it really say?" is much more time-consuming than figuring out "what is the legality of one specific activity?"

[aardy.livejournal.com]

Okay, I finally finished slogging through.

First off, IANAL.

* It sets limits on how money that is spent by candidates, parties, and their sock puppets on campaigns and electioneering can be raised & spent, sets limits who can give money to whom, and so forth.

* For allowed contributions by individuals and individual groups, the single donation and yearly donation limits are raised.

* Large donations must be disclosed/reported by the donor, and possibly also by the recipient.

* Candidates, parties, and their sock puppets must disclose/report their election-related expenditures.

* For-profit businesses that donate to campaigns and the like are assumed to have done so out of their standard operating budget unless they have a specific account for that purpose to which only individual employees can contribute.

* Tax-exempt orgs have some limits on how cozy they can be with candidates & party committees.

* Independent electioneering can't be done by party committees that have coordinated their efforts with candidates, and coordinated electioneering can't be done by party committees that have done independent electioneering, after the party has nominated a candidate.

* If you coordinate your advertising with a candidate or his party, that's counted as contribution to that candidate/party.

* Ads have to say who paid for them. In order to qualify for reduced ad rates, the ad has to include the candiate's picture (if TV) and a statement of supporting the views expressed in the ad.

That's pretty much the gist. Except for the "donating money = free speech" argument, and for building walls between how much candidates, political parties, and their sock puppets can coordinate their activities and pass money back & forth, it doesn't really seem to prevent any speech about candidates.

[baronger.livejournal.com]

Just remember that ignorance of the law is no excuse, if you happen to break any of these rules. :P

[mazarinade.livejournal.com]

*boggle*. IAAL (well, ex, I did the equivalent of throwing a senior lawyer down a reactor shaft and don't Do That any more) and if you've summarised accurately that's ... hilarious.

[mazarinade.livejournal.com]

I'd have a crack at this - ex lawyer, and still have the skills - except the URL isn't playing nice with me now for some reason. The problem I've got is complete lack of context. Statutory interpretation is a fairly simple skill and the basic rules are the same in the US as in the UK, judging from the modest sample of US judicial decisions I've read. I suspect my problem with this would be context; the phrase 'political party' denotes something quite different, in the US, from what I'd understand by that term.

[jordan179.livejournal.com]

In my opinion, McCain-Feingold is a very serious infringement on the First Amendment, perhaps the most severe that has been since the restrictions on Abolitionist literature in the pre Civil War American South. The reason why it is a serious infringement is that it outlaws speech by certain classes of individuals on precisely the topic that the Founders were most concerned -- which is to say _normal_ politics.

Not even the enforcement of the anti-Sedition laws in the Red Scare of the World War I to early 1920's era was potentially this bad in terms of its effects, because all that outlawed was political action _outside_ normal politics (i.e., discussions of attempts to overthrow the government or sabotage our military _in wartime_). THIS, if we ever get the combination of a ruthless President and a sleepy or compliant Supreme Court, could lead to one major party effectively outlawing or severely handicapping the campaigning of another major party. And, based on my experience working with third-parties, it probably _will_ be applied against third parties quite soon -- possibly in the 2008 elections.

A good day for my semi-dark American Mandate future coming true; a bad day for American representative democracy.

And hi, Sea Wasp, nice to see your journal :)

Yes, I'm _that_ Jordan.

[aardy.livejournal.com]

Are we reading the same piece of legislation? I've been through it twice now, as well as Wikipedia's summary, and I must be repeatedly missing some crucial piece of subtext, as I've heard those accusations against it many times and now that I've read it for myself, I don't see anything significant along those lines in the legislation itself. Since I'm not a lawyer, and election law isn't an area of law I'm used to dealing with, I'm ready to believe that I've missed something crucial, but in order to believe it, I need a bit more than simple assertion.

1. By subsection number, where in McCain-Feingold does it outlaw speech and how does it achieve that?

2. By subsection number, where in McCain-Feingold does it restrict speech more than the law it amended did?

Hey Jordan!

[seawasp]

How are things?

Anyway, as Aardy says, I'm looking for an actual analysis/demonstration of where it's SAYING these things. My initial parses of the law (weak though they were) didn't show anything like what was being claimed, and Aardy went through it with a lot more thoroughness and didn't find it.

That doesn't mean we don't believe it COULD be saying those things, but we can't find where in the law it's doing so, and I'd really, REALLY like to be able to point to the proper portions of the law and say "see, THERE is where it's directly limiting my freedom of speech by saying I cannot do X, Y, and Z."

Re: Hey Jordan!

[jordan179.livejournal.com]

Ok ... I'm going to admit something ...

I didn't read the law. In particular, I don't know the details of the version of the law that just past.

I _do_ know that modern politics is very money-driven and that McCain-Feingold restricts the freedom of donors to contribute as much as they want to whoever they want; and by doing so increases the influence of whoever happens to already have a media outlet and wants to pitch coverage to favor one candidate or the other. And I can easily see how an even slightly biased court could swing an election by considering one side's friendly media to be "fair and objective" and the other side's friendly media to be an attempt to evade McCain-Feingold on the part of the outlet owner.

That's all.

Oh, I'm doing reasonably well in my life.

[jordan179.livejournal.com]

Except for the "donating money = free speech" argument, and for building walls between how much candidates, political parties, and their sock puppets can coordinate their activities and pass money back & forth, it doesn't really seem to prevent any speech about candidates.

It can prevent free speech in support of or opposition to a candidate in any media that one must either purchase time on, or that one owns but would normally sell time on. This is most of the media that counts. And there is a clear and obvious moral hazard in that a judge, who is himself a member of some political party, gets to determine when the speech is "in support of" or "in opposition to" any paticular candidate.

By preventing political speech about candidates, it thus prohibits exactly the kind of speech the Framers had in mind when they wrote the First Amendment.