Free Speech Vindicated

by Paul A. Rahe

Towards the end of the post on Wednesday in which I attempted an assessment of George W. Bush’s two terms as President, I took Bush to task for betraying his oath of office and signing McCain Feingold — a bill restricting freedom of speech that he rightly regarded as unconstitutional.

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“It was,” I wrote,

President Bush’s hope and expectation that the Supreme Court would declare McCain-Feingold unconstitutional. Thanks to Citizens United v. Federal Election Commission, which is now before the Supreme Court, his hopes may — as Bradley A. Smith suggests in the current issue of National Affairs — soon be vindicated. But nothing can excuse Bush’s failure as President to do what he knew to be his constitutional duty and veto the bill.

What I did not know on Monday, when I drafted that post, was that the Supreme Court would issue its decision one day after the anniversary of Barack Obama’s inauguration. I merely argued as follows:

The first and most important of our liberties is political liberty. All of our rights depend upon its being sustained. It is essential that American elections be free and open. That is why we have the First Amendment to the Constitution. It is the most important item in the Bill of Rights. Those who framed this amendment were not concerned with artistic freedom and with freedom of expression; they took moral police and moral censorship at the local level for granted — and rightly so. They stipulated, however, that political speech be free and that the press be free as well, and they did so because they recognized that, in the absence of this freedom, if there was not free and open political debate, we would cease to be a self-governing people.

McCain-Feingold is an attempt on the part of progressives to introduce “rational administration” into the messy realm of politics by empowering an appointed commission of putative experts — in no way accountable to the American people — to decide who can say what, when, and where in the political arena. George W. Bush understood this; he expressed his misgivings; then, he signed on. For this, he cannot be forgiven.

Today I would like to be able to report that the Supreme Court banned the Federal Election Commission and by a unanimous vote reaffirmed the right of all Americans to engage in public debate concerning policies and characters and to spend their money in complete freedom to promote policies and candidates they favor without governmental interference of any kind. This it did not do. But — by a slender majority of five to four — it took a step in this direction; and, speaking for that majority, Justice Anthony M. Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” For this, we should all be thankful.

The fact that the majority was in this decision so slender should, however, be a warning to us all. Political liberty is always and everywhere fragile — and at this point in American history, given the size and scope of the administrative apparatus in Washington, it would not be hard for us to lose it. In the next two electoral cycles, it is vital that we choose a Congress and a President who understand the principles of limited government and American constitutionalism and are firmly committed to them. In 2008, neither of the presidential candidates could have been so described


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Posted Jan 21st 2010 at 12:14 pm in Congress, Justice/Legal, News, Obama, Politics | 159 Comments