At least there is one of the nine Justices that is looking out for us. Justice Antonin Scalia has been a staunch defender of Constitutional values, and is by far the biggest advocate of individual rights and limited government as envisioned by the framers of the Constitution. The following is from his dissenting opinion on this case (McConnell v. Federal Election Commission):
Because these cases are of such extraordinary importance,
I cannot avoid adding to the many writings a few words of
my own.This is a sad day for the freedom of speech. Who could
have imagined that the same Court which, within the past
four years, has sternly disapproved of restrictions upon
such inconsequential forms of expression as virtual child
pornography, Ashcroft v. Free Speech Coalition, 535 U. S.
234 (2002), tobacco advertising, Lorillard Tobacco Co. v.
Reilly, 533 U. S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514
(2001), and sexually explicit cable programming, United
States v. Playboy Entertainment Group, Inc., 529 U. S. 803
(2000), would smile with favor upon a law that cuts to the
heart of what the First Amendment is meant to protect:
the right to criticize the government. For that is what the
most offensive provisions of this legislation are all about.
We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities
most capable of giving such criticism loud voice: national
political parties and corporations, both of the commercial
and the not-for-profit sort. It forbids pre-election criticism
of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of “soft” money to fund “issue ads” that incumbents find so offensive.To be sure, the legislation is evenhanded: It similarly
prohibits criticism of the candidates who oppose Members
of Congress in their reelection bids. But as everyone
knows, this is an area in which evenhandedness is not
fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage.
Likewise, if incumbents and challengers are limited to the
same quantity of electioneering, incumbents are favored.
In other words, any restriction upon a type of campaign
speech that is equally available to challengers and incumbents tends to favor incumbents.Beyond that, however, the present legislation targets for
prohibition certain categories of campaign speech that are
particularly harmful to incumbents. Is it accidental, do
you think, that incumbents raise about three times as
much “hard money”—the sort of funding generally not
restricted by this legislation—as do their challengers? See
FEC, 1999–2000 Financial Activity of All Senate
and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last
modified on May 15, 2001), http://www.fec.gov/press/
051501congfinact/tables/allcong2000.xls (all Internet materials as visited Dec. 4, 2003, and available in Clerk of
Court’s case file). Or that lobbyists (who seek the favor of
incumbents) give 92 percent of their money in “hard”
contributions? See U. S. Public Interest Research Group
(PIRG), The Lobbyist’s Last Laugh: How K Street Lobbyists Would Benefit from the McCain-Feingold Campaign Finance Bill 3 (July 5, 2001), http://www.pirg.org/
democracy/democracy.asp?id2=5068. Is it an oversight, do
you suppose, that the so-called “millionaire provisions”
raise the contribution limit for a candidate running
against an individual who devotes to the campaign (as
challengers often do) great personal wealth, but do not
raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do)
a massive election “war chest”? See BCRA §§304, 316, and
319. And is it mere happenstance, do you estimate, that
national-party funding, which is severely limited by the
Act, is more likely to assist cash-strapped challengers than
flush-with-hard-money incumbents? See A. Gierzynski &
D. Breaux, The Financing Role of Parties, in Campaign
Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). Was it unintended, by any
chance, that incumbents are free personally to receive
some soft money and even to solicit it for other organizations, while national parties are not? See new FECA §§323(a) and (e).
The entire opinion on this case can be found here. Justice Scalia’s opinion begins on page 172 and continues to page 186.