About That McCain-Feingold Bill…

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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51 Responses

  1. Jaybird says:

    This is like everything else.

    There is the Idea of Reform.
    There is the Bill We Actually Get.

    People assume that people who oppose the latter oppose the former.

    (And that’s not even taking into account the First Amendment, which nobody reads anyway.)Report

  2. Kyle says:

    Didn’t you see Election 2008? You know when the special interests were repudiated by grassroots giving and the Democrats returned contributions from Wall Street because they knew they’d win and they only wanted to be behold to “the people.” /sarcasm.

    I enjoyed Dionne’s question/premise, “Does the court’s majority really think that the problem with our politics is that corporations have too little power?”

    Some people think the question before the court was the degree to which government can discriminate against corporations in regulating free/political speech. Others, like Dionne, apparently think context should determine how binding or not the bill of rights should be.

    Not normally a Kennedy fan, I did enjoy this point, “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.”

    On a related note: http://dailycaller.com/2010/01/21/k-street-thrived-in-2009-the-proof-is-in-the-numbers/Report

  3. Lev says:

    I’m a liberal, but I’ve always been skeptical of CFR. It’s a waste of time and political capital. I doubt striking down this ban will change much–maybe the money men will give more to candidates and less to 527s. Ultimately, though, the problem here isn’t that we can’t design a clever enough law to keep rich people from having an outsized role in our political sphere (because we can’t), but that American society has become remarkably unequal in the past few decades. The key really is enhanced union protections and a more generous welfare state, not really campaign finance reform (or even really more progressive taxation).Report

  4. Zach says:

    If Thomas had his way on reporting requirements, then yes; otherwise, no. No one joining his dissent is probably a good indication about what’s in store for the gay marriage case, yeah?

    This will make it a lot easier to get money into political ads, so there will be more money in ads… I doubt it’ll lead to more corruption on an individual basis, but it will increase the requirement to be backed by a load of money to win which is corrupting in the long run.

    The majority signaled in a major way that they’ll axe the individual contribution limit as well in the opinion (don’t have it here to cut+paste the relevant sentence). Is there a new case challenging that in the pipeline?

    I’m cynically looking forward to all of the big negative ad buys that this will result in. Under the old law, these almost entirely had to come out of a candidate (or party) budget and someone had to stand behind them. We’ll be able to get some awesome gutter politics going on with personal attack ads from faceless independent groups.Report

  5. Dave says:

    You mean it took a Supreme Court decision for a corporate takeover in politics? I guess TARP support came from a grassroots movement?Report

  6. Kyle says:

    This just reminds me of how so-called “liberals” will be up in arms about how McDonald v. Chicago will apply the Bill of Rights to state and local governments. I’m kind of looking forward to they mental gymnastics required to say that a city alleging that “Privileges or Immunities Clause” shouldn’t protect substantive fundamental rights to keep us safe from the guns.Report

    • Dave in reply to Kyle says:

      It’ll be judicial activism, just like Citizens United will be. I think Justice Stevens basically states that in his defense without actually saying that since he complains about not respecting precedent.

      If you recall, Justice Stevens made the same complaints when the majority overturned Bowers v Hardwick in the Lawrence v Texas decision. Oh wait…Report

    • Mark Thompson in reply to Kyle says:

      I’m highly skeptical that McDonald will result in the restoration of the privileges and immunities clause. But if, somehow, some way, it does, I’ll be genuinely interested to see the liberal response. On the one hand, they’ll certainly be glum about what it means for gun control; on the other hand, restoration of the privileges and immunities clause would have extremely wide-ranging implications for other areas of the law, not least of which would be same-sex marriage.Report

  7. Michael Drew says:

    Does it need to have positively reduced corruption in order to be defensible? Can’t it just have made it get less worse than it otherwise would have? No one ever claimed corruption could be legislated away. Is that an argument for no constraints?Report

    • Kyle in reply to Michael Drew says:

      Did you really need to ask if it had to work, in order to be defensible? Never mind whether it was constitutionally permitted in the first place, right?

      What exactly did McCain-Feingold do to make “things” less worse?Report

      • Michael Drew in reply to Kyle says:

        So many categories. “Reduce,” “work,” “defensible,” “permitted.” I’m not saying it did make corruption less worse, I’m simply asking whether if it did, some “hyperventilating,” or at least heavy breathing, might be at least reasonable. His point was a practical one — i.e. it’s not a big deal because the law didn’t “make our politics less corrupt.” I’m asking whether that’s a good standard for discounting the importance of the ruling. So yes, indeed at the moment I’m not minding whether it was constitutionally permitted.

        By the way, I didn’t use the word “things.”Report

        • Is there any evidence that it even slowed down the pace of suckiness? I think it an important case for free speech. I think its primary effect may even be to empower smaller businesses without increasing the relative influence of big business – indeed, Justice Stevens’ dissent implicitly (though unintentionally) even recognizes this by acknowledging that big corporations will have the ability to electioneer no matter what because they have the resources to overcome burdens on free speech.

          Where exactly is the disastrous fallout from this decision going to come from if its primary effect is to overturn a law that has had no demonstrable benefit?Report

          • Michael Drew in reply to Mark Thompson says:

            I’m merely asking whether you can get in a head space where you can see where a person who who believes that a reduction in the rate of erosion of honest representation occurred and believe the First Amendment issues were sufficiently worked around in the law might be justified in having a strong reaction to the ruling. That’s it. I’m not asking you to agree with their analysis, or trying to prove to you it’s right. I’m merely wondering if the charge of hyperventilating has any meaning if you’re going to trot it out whenever someone you disagree with writes with passion about something they care about. Just on the scope of what this decision allows, regardless of the net effect, this is a huge decision. It’s fatuous to say a strong reaction to it is hyperventilating.

            As to proof, I have no idea how to show how much corruption there would otherwise have been. That isn’t the point. The ruling lifts all restrictions on corporate spending on election-related issue adds (if I am not mistaken). That is certainly a very major thing, and if a person tends to think it’s bad, then they think it’s as a bad thing. It only makes sense to say they’re hyperventilating if by their own syandards somehow you can claim they’re misreading the issue. Surely, you don’t claim to see things the way E.J. Dionne does. So why say he’s hyperventilating? From his perspective, he’s describing the situation accurately.Report

            • Michael Drew in reply to Michael Drew says:

              “if a person tends to think it’s bad, then they think it’s as a bad thing”

              if you think it’s bad, then you’re going to thin it’s very bad, was the intended gist there.Report

            • But my entire point is that it’s just assumed that McCain-Feingold did some good – there’s no examination whether it did any. It would seem to me that such an examination would be a prerequisite to hyperventilation. If Dionne or any supporter of McCain-Feingold even attempted to make an argument that it has done some good, I’d understand the hyperventilation even if I disagreed with it. But I’ve never even seen anyone attempt to argue that McCain-Feingold has done any good. It’s just assumed as an article of faith that it did everything advocates hoped it would do, or at least something that advocates hoped it would do or at least slowed the progress of the badness. Meanwhile, the free speech argument just gets dismissed as frivolous, and opponents of BCRA are likewise dismissed as mere shills for corporations.Report

              • For that matter, it’s just assumed that campaign finance restrictions in general have done some sort of good. Where is the evidence? Where is the argument for why and how they’ve done good? I’m not saying that the evidence isn’t out there or that the arguments are automatically bad – I’m saying that they’re not even made.Report

              • Michael Drew in reply to Mark Thompson says:

                My initial point was merely to ask whether you would potentially accept a slowing of corruptopn as “some good,” because I found the expectaion of an actual decrease completely unrealistic and probably out of line with what its informed proponents at the time claimed for it. Now ass Kyle pointed out, this ignores the Constitutional issue. So let me square the circle. You in fact misrepresent Dionne by saying he somehow begs the question of the pragmatic consequences of the law. In fact, in the entire item, he only makes two substantive claims about the decision, neither of which claim that corruption has been reduced. They are these:

                The Supreme Court’s 5-to-4 ruling today to open our political system to unlimited sums of corporate money is…[insert SCOTUS-politics opnion

                I.e. that SCOTUS did what he says they did. And:

                Substantively, supporters of this decision…say it is about free speech. It’s not. Corporations are not individuals, as Congress recognized when it first limited the role of corporate money in politics back in 1907. Corporations are created by law, and they should not be treated the same as we treat live human beings.

                Other than that, it’s all commentary on the decisions relation precedent. He makes no claim that political corruption has been decimated a a result of the legislation. He merely makes a normative claim meant to justify the law that corporations shouldn’t be allowed under the law to use their dominant economic power to influence politics without limit, and that this is allowable legally because they are not individuals and this don’t enjoy protection under the First Amendment that individuals do. (To be clear, I’m not endorsing this as a legal argument or even a normative case for the legislation necessarily.) So according to argument, that is according to what Dionne is saying he values and is causing him to hyperventilate, the ‘demonstrable’ effect of the law is simply that something pernicious — unlimited corporate influence on elections — is illegal. It is obvious that not all pernicious things can Constitutionally be made illegal, but Dionne believes this is one that can be, and that making it again legal is in itself something to hyperventilate over. Whether the limits that were struck down in fact reduced ‘corruption’ (the word does not appear in Dionne’s piece) simply doesn’t seem to be part of the hyperventilation.

                It’s a perfectly valid question to ask whether the law reduced actual corruption, though I’m not sure how corruption can be measured in the aggregate so that we can find the answer, to say nothing of the problem of what the corruption levels in the non-McCain-Feingold universe look like. As I said, my initial inquiry was whether you might agree that in terms of practical impact a reduction in the rate of growth would be enough to justify lamenting the loss of the limits on grounds of effect alone. These seem like good questions for a debate about repealing the law. In reacting to a Supreme Court decision in which the majority in Justice Stevens’ words “changed the case” at hand in order to make the ruling more sweeping and to overturn more precedent than was even implicated by the facts, it seems to me that Donne had quite an on-point and frankly measured response considering the activism of the decision and its having an inherent legal (not practical, though I imagine Dionne would claim there were practical reductions in corruption as compared to what would have been, even if he were as unable as I am to think of a way to show it empirically) about which he has a strong opinion.

                But if you think so much rides on whether corruption of official governance has been reduced, Mark, (rather than merely corporate influence over the outcomes of elections, regardless of whether legislators then actually change their behavior at the direct result of the spending done by corporations on issue ads in their races, which I think is a minimum definition of corruption, and which is far from the direct concern of the legislation itself — there were always laws about that), then why don’t you do some research and offer some evidence rather than just helping yourself to guessertions as you did here?Report

              • But where is the argument that it’s even slowed down corporate influence? It’s just assumed that the legislation did what it said it would do, that its restrictions were meaningful and effective. Where is the argument to support the notion that the restrictions have, in fact, limited [large] corporate influence over our elections? It’s just assumed.

                I’m not just going after Dionne here, by the way – I have been hearing for ages how campaign finance reform and restrictions on corporate involvement in elections are critical to overcoming the problem of influence markets in American politics. Yet when such restrictions are enacted, there is consistently nothing to show for it other than even more pork-laden bills that further reinforce the validity of public choice theory.

                This is a general problem I have with liberals’ views of legislation. When legislation is enacted with liberal support, there is nothing that can ever happen that can disprove its validity. Enact a stimulus package based on projections that it will reduce unemployment from 10% to 8% and then wind up with unemployment well over 10%? Well, clearly, things would have been even worse without the stimulus package and we need another one. Enact CFR with the expectation that it will reduce the power of special interests in Washington only to see that power grow faster than ever? Well, clearly things would have been even worse without the CFR and we need to double-down on it. And so forth. The goal posts keep getting moved to claims that are ever-more unfalsifiable.

                If libertarians sometimes go too far in taking it as an article of faith that markets always work, liberals go too far in taking it as an article of faith that government is competent.Report

              • Michael Drew in reply to Mark Thompson says:

                I’m not making such an argument. Maybe it hasn’t done that. Maybe the law should have been repealed (validity? what does that mean?). Instead, it was struck down. But in any case legislation of all kinds itself says what it does. This law limited the amount corporations could spend on issue ads referencing candidate names within a period of time before their elections. That’s what it did. We can go back and be look at what was being said for the legislation and then see if those things came to pass, sure. But in view to what? Do you just want an admission that it didn’t do those things? Well, if you can show it, fine. That doesn’t compel anyone who favored the limits to now favor their repeal. They were wrong about what they said (hoped) it would do; they can still want the limits in place. What should be the consequence? In a legislature, enough members can become convinced the law failed and repeal it. Are you saying there should be some type of automatic repeal process that is then triggered? Or what? You say that “there is nothing that can ever disprove [legislation’s] validity.” Well, for some it plainly can be disproved. What should be the measure of your claim that legislation supported by liberals ‘cannot be disproved’? Are you referring just to what the liberals themselves say about it? Do conservatives frequently admit error and seek repeal of past laws?
                Obviously, parties and ideological coalitions of all stripes don’t go around seeking the repeal of their accomplishments; that’s what their opposition is for.Report

              • Michael Drew in reply to Mark Thompson says:

                You yourself are making all kinds of claims here that aren’t explicated. you say that the power of special interests has grown despite campaign finance reform. Exactly how? It’s probably true on balance; I’d say no one should probably have ever claimed it wouldn’t. But that doesn’t mean we’d prefer to have had such influence grow in an environment that was not restricted as it was.

                This is just too general a discussion. It matters just what the influence is that has increased. Was it really a target of McCain-Feingold? Could it have been under the Constitution? Above all, just because special interest influence has increased in ways not reached by the law, does that mean that we would have been better off without the restrictions we did have?

                Laws aren’t enacted as experiments, and only have sunset clauses when they are purposely included. By-and-large, after a debate, the law is changed (or not), and is thought to be permanent until further revision, not specified for review at times certain, unless specified. That’s just an assumption in legislating. You can always change the law again, but then that is a new process of debate and action. The status quo is the status quo, not the status-quo-from-when-before-we-made-that-one-change-in-the-previous. I would have been fine with looking at campaign finance again had it not been mostly struck down today, and maybe could have been persuaded that it was in need of repeal. But that would have been a consideration of a new change in existing law, not a return to some past state. Laws are passed on particular rationales, yes, but then they are the law — there is no gravitational pull back down to sea-level, no presumption of invalidity should the rationale for them be shown unfounded.Report

              • Kyle in reply to Mark Thompson says:


                You know what would fix this problem, if liberal supporters adopted Scalia’s views on the importance of legislative intent. Heh.

                Second, one of the funniest things I’ve read in the reax to the decision, “If corporations are capable of making the public do their bidding, then why isn’t everyone driving their Edsels to Circuit City to purchase Betamax video recorders?” (Bert Gall, Daily Caller)Report

              • Michael Drew in reply to Kyle says:

                Because decades of conservative economic policy has left “everyone” without the means to do so, and “few” with them.Report

        • Kyle in reply to Michael Drew says:

          “it get,” then. it sounded awkward.Report

  8. Bob Cheeks says:

    Hell, it’s all going in the crapper for the commie-dems…they can’t even restrict free speech. What’s this world coming to?Report

  9. Kyle says:

    Michael Drew…

    “You say that “there is nothing that can ever disprove [legislation’s] validity.” Well, for some it plainly can be disproved. What should be the measure of your claim that legislation supported by liberals ‘cannot be disproved’? Are you referring just to what the liberals themselves say about it? Do conservatives frequently admit error and seek repeal of past laws?
    Obviously, parties and ideological coalitions of all stripes don’t go around seeking the repeal of their accomplishments; that’s what their opposition is for.”

    Given that this is a blog post and comment section, surely support would be helpful but I hardly find it lacking. I quite agree with Mark, whenever legislation fails to live up to expectations the standard talking point is a.) without efforts life would be worse and b.) ineffectualness clearly means we need more. So things that in another area of life would trigger more significant re-examinations, in politics trigger only more defensiveness and more “doubling down.”

    Yes, both sides do this, but given the liberal predilection for finding inelegant government solutions for problems, it should be no surprise that the left is more representative of this tendency than the anti-government right.

    I think it’s clear that when Mark is talking about “liberals’ views of legislation” the relevant evidence would be “what the liberals themselves say about it.” WRT the stimulus and CFR there are countless examples from liberal pundits and politicians saying exactly what Mark did.

    Do conservatives admit error…? Probably not but it has little bearing on liberals’ tendencies to do so. Parties/coalitions do seek the repeal of their accomplishments. Glass-Steagall was signed by a Democratic president and repealed by one. ED’s race to the top funds are prompting states to repeal laws barring the use of student data in teachers evaluations, laws passed by Democratic legislators. President Carter deregulated civil aviation, an industry regulated by President Franklin Roosevelt.

    I could continue, but the point remains that when legislation outlives its usefulness, or if it has none to begin with, it should be eliminated. A fair number of less rabid Democrats remembered that tenant of good governance, today’s left (outdone by the right, however) seems unable or unwilling to reconsider decades old assumptions that form the basis of current laws, continued laws, and prospective laws.Report

    • Michael Drew in reply to Kyle says:

      Well, I suppose if a libertarian and a Kyle say liberals do it more, then liberals must do it more.Report

    • Michael Drew in reply to Kyle says:

      Glass-Steagal was signed into law in (h/t wiki) 1933; repealed in 1999 or so. McCain-Feingold enacted in 2002; it is now 2010. Somewhere between those extremes there is a happy medium for expecting a party to circle back on itself (and in any case, ideologically those behind the repeal of Glass-Steagal were not aligned with its creators). Shorter-span repeal cycles are on opposition coalitions as far as I can tell. These expectations for perfect rationality and ideological detachment in politics are ridiculous, and their fulfillment could lead to a great deal of confusion and uncertainty about the direction of future changes in law, as Mike Farmer has recently discussed at this site.

      Presumably you are right that Mark meant that the party that passes legislation should be open to quick review of same. I just wonder what structures he imagines should emerge from that expectation if any. I also think what I said about change becoming the new status quo. Having a change-resistant system means having a changing-back-resistant system as well. One mechanism of this is that parties protect their accomplishments because they are hard to attain. But since every federal elected official’s motivations are presumed to be nefarious around here (or at least in sum they are, at least when taking action in a particular direction) I don’t expect that to hold much sway for you.

      Is that a picture of you, btw?Report

      • Michael Drew in reply to Michael Drew says:

        …I’ve seen multiple commenters named Kyle here is why I ask…I’m just assuming you’re not all one and the same.Report

      • Kyle in reply to Michael Drew says:

        Ok so there were sixty years between G-S and its repeal, but only 40 for airline deregulation and even less for the education law and policy issues. Though, admittedly the latter is state-federal.

        I’m not asking for perfect rationality (can such a thing exist?) and ideological detachment but a stronger degree of critical self-assessment. The complaint that the left gets wedded to certain policy ideas to the exclusion of others is one I have but more tellingly, it’s one I’ve heard from most of my democrat friends.

        I think Republicans do the same but I don’t think the solution is a system for rapid turnover, more sunsets, or arbitrary evaluation regimes. Mostly, because I think it’s cultural. I think both sides hunker down and rely on policy tools that reflect worldviews and don’t build into their policy preferences any kind of self-evaluation to measure what they seek to achieve through the policy.

        Urban policy is full problems like that, money and programs are created and thrown at a variety of problems and yet intractable urban poverty and crime is rarely seen as a reason to consider different approaches, only double down on existing ones.

        That said, urban housing policy should probably be excepted, the liberal policymaking consensus pretty much agrees that the “projects” were a disaster and has focused on mixed-income housing, among other solutions. So it happens but it’s rare and it took years to get there.

        Yes, that is my picture.Report

        • Michael Drew in reply to Kyle says:

          Right. They do get attached to the big actions they’ve taken — both sides — because they are very hard to bring about. completely kill critical appraisal of one’s own party’s. I’ve suggested the remedy is obvious and built-in: any time the party (or another grouping) that opposed some original legislation gets in the majority or can convince a few on the other side it needs to be repealed, they are entirely free to do so. That’s apparently not enough for you and Mark — it’s very important to you that the proponents of he legislation themselves admit when it has failed. And in theory, they obviously should if it has. But you seem to be doing nothing more than just wishing they would be better more open about this. Well, you can certainly wish. But we’ve established that this is an institutional behavior that we can count on from both sides. That’s why it makes all the sense in the world for the opposition to be vigorous in seeking repeal of what they think has failed.Report

          • Jaybird in reply to Michael Drew says:

            How often does legislation get repealed? In practice, I mean.

            On a state level, or even city level?

            Is it *at all*?

            (Personally, I think that every law, that is, *EVERY SINGLE LAW* should have a sunset clause. If you can’t pass it a second time, it obviously wasn’t a good law.)Report

            • Michael Drew in reply to Jaybird says:

              Jaybird, you’re the man. You got straight to my point — ‘Fine, so we wish they would come back and review whether what has been passed is working, but the observed behavior is that they protect their accomplishments. Other than preeningly call on them to become more principled people overnight, what do you wan to do about it?’ Well, you have a straight-on-point answer, my friend.

              As to how often we repeal — as often as there is will and ability in the legislature.

              Btw, I’m not sure I disagree with you on a sunset for ever law, but man, I don’t know if we could get anyone to run for office with the amount of renewals that would be needed. That’s would be a LOT of work.Report

  10. Kyle says:

    I would have been fine with looking at campaign finance again had it not been mostly struck down today, and maybe could have been persuaded that it was in need of repeal. But that would have been a consideration of a new change in existing law, not a return to some past state. Laws are passed on particular rationales, yes, but then they are the law — there is no gravitational pull back down to sea-level, no presumption of invalidity should the rationale for them be shown unfounded.

    Fair enough, but they are not presumed invalid if the rationale for them is shown to be unconstitutional, they are invalid. In the meantime, if the rationale for them is unfounded – or in this case ill-addressed by the legislation at hand – it’s entirely fair game to criticise the law.

    As I take it, people could and were saying that BCRA was ineffectual, others were saying it was unconstitutional. There’s every reason in the world to believe it was both.

    God, I sound like George Will when I’m cranky.Report

    • Michael Drew in reply to Kyle says:

      but they are not presumed invalid if the rationale for them is shown to be unconstitutional, they are invalid

      Wrong. They remain the law until repeal/amendment. This valid/invalid laws categorization is one with which I am not familiar.Report

      • Michael Drew in reply to Michael Drew says:

        Sorry, I misread what you were saying the rationale was shown to be. I said unfounded, by which I meant that in the fullness of time the hopes for the effects of the law have not come to fruition. I didn’t mean ‘found unconstitutional.’ If what you mean by “invalid” is “unconstitutional,” then you do indeed have a workable category there. But I do not think that is what Mark meant by the term “validity.”Report

    • Michael Drew in reply to Kyle says:

      Also, let me be clear:

      if the rationale for them is unfounded – or in this case ill-addressed by the legislation at hand – it’s entirely fair game to criticise the law

      Indeed, whether the rationale is unfounded, well-founded, or any thing else, it is of course fair game to criticize a law on the books. Always. Any grouping in the legislature can always undertake to repeal something with perfect legitimacy. The question I thought we were discussing — which I sought clarification on from mark and thought I received from you — is how soon or under what conditions, exactly, we should expect the exact same majority that passed some legislation — its proponents — to come back of their own volition to review it with perfect openness to judging it a failure and undoing it out of pure integrity. And I agree that if politicians were saints, they would do this often and as needed. But they’re not, they’re politicians, so they do it like once every sixty years. That’s why I it’s good that we have more than one party in this country.Report

      • Kyle in reply to Michael Drew says:

        In this case the trouble with BCRA is at least partly that it was bipartisan but the history of campaign finance reform goes back longer than than 2002 and is – for the most part – more of a Democratic/liberal issue than a conservative one.

        It’s not a perfect alignment but calls for public financing and limitations on corporate speech come more from the left than they do the right.

        With respect to McCain-Feingold, I think it was rather flatly unconstitutional and therefore the relevant question isn’t whether the Supreme Court think corporations have enough influence in politics (as I’m watching quite a few people assert on the teevee). Instead we should look at how to craft a solution to our problem within the framework of the constitution or – if that should be ineffectual – what kind of amendments we should consider. This is probably just me but the fact that the BCRA is unconstitutional makes a discussion of whether it was good or bad law, rather moot.

        Still reporting requirements are constitutional so it’s not like people won’t be aware of who is sponsoring which messages…Report

        • Michael Drew in reply to Kyle says:

          Well, I had moved on to the general point about review of law on the books. Provisions of BCRA have obviously now been found unconstitutional, but to suggest it wasn’t drafted amid strenuous efforts “to craft a solution to our problem within the framework of the constitution” is patently ridiculous. It’s drafters jumped through hoops to craft a law that conformed to the Constitution based on the state of 1A SCOTUS jurisprudence as it stood at that time. But elections have consequences, and we have a new interpretation view of that question now.Report

          • Kyle in reply to Michael Drew says:

            jumped through hoops? really? McCain-Feingold has been to SCOTUS before and lost before, including almost immediately after passage, the objections to the law then were then validated closely after.

            Of course to clarify within the framework of the constitution as it is, not as we wish to be understood.Report

            • Michael Drew in reply to Kyle says:

              Absolutely. Call Russ Feingold or look up any of his floor speeches in the debate if you want to hear about the work that went in to make the law pass muster. That doesn’t mean they weren’t on the wrong track or that it wasn’t a doomed effort. But you charged that how to make a law that would pass Scotus’ muster wasn’t even “look[ed] at.” Hogwash.

              As to the Const. — it obviously has no inherent meaning (there is no “as it is”). “It is” scratches on parchment. We figure its meaning, and there is a running state of play, which is political, on where that interpretation stands at any given moment.Report

              • Kyle in reply to Michael Drew says:

                My statement was prospective not retrospective. That whole paragraph was prescriptive so all of this moot, except one thing.

                We don’t have to figure its meaning from nowhere. The allegation that it has no inherent meaning is ill supported and contradicted by centuries of Americans, politicians, legislators, and jurists.

                Freedom to petition does not mean that in 2010 we can politically decide the founding fathers meant one must have grievances in order to petition the government, nor that they must use an actual petition. Nonsense. I don’t deny that there is interpretive variance in the application of the constitution, particularly the bill of rights to contemporary laws and actions. However, the idea that the only meaning it as is the meaning we give it today, via elections. Is inaccurate and ahistorical.Report

              • Michael Drew in reply to Kyle says:

                I overstated the case for effect (and to see how loud you can howl). But the point stands: as much as saying it has no inherent meaning at all is ridiculous, so too is the idea that it has a perfectly fixed meaning that is not historically contingent and subject to interpretation. If the entire population of the earth were suddenly wiped out, the U.S. Constitution would have no meaning at all (it lives in our minds). So it does depend on what we decide it means. It’s just that there is deep, broad, durable, longstanding agreement about what a great fraction of its words mean. A smaller fraction, however, not so much.Report

  11. Michael Drew says:


    Maybe what Mark was trying to say — plus details? (I assume he’ll tell us.) Prof. Cole goes with “hand-wringing,” which I find a little bit less hyperventilating than “hyperventilating.”Report

  12. Jaybird says:

    William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!Report