BCRA Assault on the First Amendment
The Founding Fathers were always profound, but not always right. How could they be? They often disagreed with each other. The Federalist Papers were a series of newspaper articles by Alexander Hamilton, James Madison, and John Jay intended to persuade fellow citizens of the wisdom of adopting the proposed new constitution. One of the concerns was that the original document did not include a bill of rights. This deficiency was alleviated by the first ten amendments, the Bill of Rights, adopted shortly after the adoption of the Constitution.
In his defense of the original document, Alexander Hamilton in Federalist 84 noted that some protections, like the writ of habeas corpus were already in the Constitution. However, Hamilton argued that constitutions as a rule were too general to contain a specific enumeration of rights. He feared that such an enumeration might "even be dangerous." A failure to enumerate a particular right might suggest it did not exist. Fortunately, Hamilton's position did not ultimately prevail or who knows what predations ever expanding governments might have visited upon us.
While some fret over additional powers to pursue terrorists that may be granted to the government under the Patriot Act, many seem to neglect a concerted government attempt to limit political speech. The Bi-partisan Campaign Reform Act (BCRA) represents just such an effort. It appears from this vantage point that this threat is greater than any posed by the Patriot Act. After all, if we can maintain free political speech, we at least have the opportunity to remedy other problems that may crop up from time to time.
Presently, the BCRA is working its way through the courts in the case of McConnell v. FEC. There is particular doubt as to the constitutionality of the Snowe-Jeffords Amendment to the BCRA. The provision prohibits companies, labor unions, and non-profit advocacy organizations from broadcasting messages that mention a political candidate within 60 days of a general election. The National Abortion Rights League is prohibited from running a television ad that says "Vote for candidate Smith because he supports abortion rights." The National Rifle Association may not run an analogous ad in support of a candidate sympathetic to its views.
One of the criteria courts use to assess the constitutionality of a law is "overbreadth analysis." Is the BCRA so broad that it might inevitably infringe on constitutionally protected speech? Would a provision that bars electioneering ads also prevent the expressions of ideas? Laying aside for the moment the critical issue of whether even ads that mention candidates made by organizations independent of the candidates or parties should enjoy First Amendment protection, the appeals court wanted to quantify the potential empirical effect of the BCRA. David Tell for the Weekly Standard has examined whether intellectually dishonest approaches were used to push forward the case for reform in making this empirical determination.
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