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Fritz Feds

Monday, September 15, 2003

A Fritz Fed on Fritz on campaign finance Okay, there is finally a lull in the 2L storm, so my short hiatus is over, for now. It seems like this blog would be an utter failure if I didn't at least comment on the op-ed by Walter Mondale in yesterday's Star Tribune.

The Honorable Fritz begins by laying out (some of) the players:

Last week, the Supreme Court heard arguments on the constitutionality of the law, which is being challenged by an array of groups from the National Rifle Association to Republican and Democratic Party committees.

A shocking bit of honesty, there, admitting that the Democratic Party opposes the BCRA. But why did he only mention the NRA? I suppose he doesn't consider it relevant that the campaign finance bill is also being opposed by such right-wing extremist groups as the ACLU and the AFL-CIO.

Maybe Mondale isn't trying to deliberately mislead people into thinking the opposition to the BCRA is just another scheme of the vast right-wing conspiracy. But the fact that the only non-partisan interest group he mentions is one that liberals constantly attempt to demonize as an extremist group of gun-nuts shows that he's not above playing rhetorical games with the facts.

His analysis of the constitutional issues leaves a little to be desired as well:

Critics of the law say McCain-Feingold violates the constitutional right to free speech. The law, however, does not ban speech. It simply prohibits the use of corrupting soft money to pay for that speech.

"Corrupting soft money"? What does that mean? Well, Mondale says that soft money is "unlimited, unregulated contributions by corporations, labor unions and the very wealthy." What about the corrupting part? Well, of course, that just means that the groups attempting to influence the political process are being successful.

Isn't this precisely what the First Amendment is supposed to protect? All these unfavored groups ("corporations, labor unions and the very wealthy") are working through the electoral process, after all. They are not giving bribes. They are simply using their own money to fund a political message, and they shouldn't be restricted from doing that simply because Walter Mondale doesn't like them.

In fact, the rhetoric Mondale uses illustrates precisely why these measures are so important. It is a fundamental principle in free speech jurisprudence that if a restriction on speech is not content-neutral, it is inherently suspect. But Mondale's framing of this issue seems specifically designed to invoke negative attitudes of at least corporations and the very wealthy, if not labor unions, as a reason to uphold the BCRA. Restricting corporations from speaking as corporations is definitely not content-neutral. As Scalia pointed out in the oral arguments, if some proposed action would harm corporations, the engine of our economy, those corporations ought to be able to speak, as corporations, to get the word out.

Additionally, as The Big Trunk points out over at the Power Line, Mondale wrongly suggests that if speech is not actually being banned, then there is no First Amendment violation.

The Big Trunk also tells this fascinating story:
In the January 1956 issue of the Minnesota Law Review, a precocious third-year law student published a brilliant critique of campaign finance regulations. "The right of persons effectively to present their views on community issues is fundamental to free speech," he wrote. In addition, he noted, "For many years scholars have urged that limits be removed and that primary emphasis be placed on public disclosure of the facts of campaign financing." He endorsed the conclusion of those scholars.

Walter Mondale is the author of the anonymous 1956 law review note criticizing campaign finance regulations. I have a copy of the January 1956 Minnesota Law Review issue with the note autographed by Mondale as its author. Mondale contributed the autographed issue to a law school fundraising event in 1978 when he was serving as Vice President.

If you are interested in reading a deeper critique of Mondale's position, this piece by Erik Jaffe is worth checking out.


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