Strengthening Constitutional Self-Government

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Congress

Save the First Amendment

Kill McCain-Feingold. Some recent developments:
The issue bandied about on Tuesday asked whether banning the broadcast of "Hillary: The Movie," 30 days before last year's Democratic primary, violated McCain-Feingold (a lower court said yes), and whether that application of McCain-Feingold violated the constitution.

Much of the intrigue arrived courtesy of Malcolm Stewart, the lawyer for the government. According to the NYT's take, Stewart largely argued that Congress has the sweeping power to ban political books, signs and videos, so long as they're paid for by corporations and disseminated not long before an election.

Stewart argued there was no difference in principle between the 90-minute documentary and a 30-second television advertisement, a position which Justice Kennedy seemed to find hard to stomach.

"If we think that the application of this to a 90-minute film is unconstitutional," Justice Kennedy said, "then the whole statute should fall under your view because there's no distinction between the two?"

It didn't sit well with other justices, either. According to the NYT's Adam Liptak: "by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court's 2003 decision upholding the McCain-Feingold campaign finance law . . . ."

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Here's a wager:

That the appellate courts will eventually ratify an intellectual farrago cooked up by law professors and the public interest bar which leaves unimpaired (and even grants heretofore unextended immunities) to the press, the bar, and the professoriate, while permitting comprehensive regulation of everyone else in the name of some conception of public health. I give 'em another 20 years or so to spell it out. Laurence Tribe, take it away.

The only way Congress can do this is for them to violate the Constitution which they don't seem to have a problem doing now a day's and if they do they are in big trouble.

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