Strengthening Constitutional Self-Government

No Left Turns

The Loophole of Free Speech

WaPo editorializes today about the loophole in reform law created by, well by the Constitution. You think I’m kidding, but no. They actually say it: "Since this exception is rooted in the Constitution, Congress can do little about it."

Aside from taking their usual swipes at the FEC, the op-ed focuses on a decision by a judge in Hawaii saying that the campaign reform law did not apply to non-profits seeking to run ads in a special election, and suggests that this is not a ruling against McCain-Feingold. While I have not seen the opinion, it appears that both the judge and the Post get this one wrong. According to the Post, the judge ruled that the new law doesn’t apply to runoffs, and therefore the court didn’t need to reach the question of the constitutionality of provisions in McCain-Feingold which would otherwise apply. It is true that the law doesn’t apply to runoffs, but the race to fill Patsy Mink’s seat isn’t a runoff, but rather is a special election. Special elections are covered by the act if they occur after November 5 (and the FEC has suggested specifically that this race is covered). Second, the Post fails to recognize that McCain-Feingold doesn’t permit what even the Post recognizes as a constitutionally required exception. Therefore, the ruling about the constitutional need to permit these kind of ads is very relevant to the constitutionality of McCain-Feingold. At any rate, the Hawaii case was just a prelude to the larger constitutional challenge to the bill, which has formal proceedings beginning in D.C. Federal District Court later this week.

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