From Scalia's dissent
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/
(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
Secs. 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 Secs. 323(a) and (e). (end of quote)
I believe the primary purpose of the 1st was to prohibit those in power from restricting speech as a means to continue in office. That is what this bill does. It protects incumbants from political attack. It restricts money more often used by political challengers. It's effect is to increase the already significant difference in spending ratio between the typical incumbant versus the typical challengers warchest. Yes, it was a sad day for the 1st Amendment, and for all Americans.
Yep, Congress passsed a bill that protects incumbants and lobbyists. Is that the kind of reform we need?