Many close observers of the Supreme Court expect a ruling in the Bipartisan Campaign Reform Act (BCRA – better known as McCain-Feingold) case McConnell v. FEC before the High Court goes home for Christmas break on Dec. 15.
The National Rifle Association, one of the plaintiffs in McConnell, is already planning its next move. Even if only a threat, it’s a strategy you could easily imagine John Cleese of Monty Python fame coming up with – acting absurd to illustrate the absurdity of the law.
It’s a beautiful idea.
Under present law, institutional media organizations like ABC or CNN are able to say what they want about candidates and spend corporate funds to do so. But under the new BCRA law, the NRA is now banned from spending its corporate funds (just before elections) to say what they want to say about candidates using the same media outlets.
So, over the weekend, the NRA’s executive vice president Wayne LaPierre told the Associated Press, “We’re looking at bringing a court case that we’re as legitimate a media outlet as Disney or Time-Warner. Why should they have an exclusive right to relay information to the public, and why should not NRA be considered as legitimate a news source as they are? That’s never been explored legally.”
Well, almost never.
Congressman Ron Paul, et al. (Paul v. FEC), another plaintiff group in the McConnell case, denied that the government had the constitutional authority to regulate anyone, big or little, exercising their constitutional “press” freedoms. They argued that “Joe Mimeograph” (as one justice cleverly titled the hypothetical citizen activist) has just as much constitutional right to Freedom of the Press as the New York Times does. On that theory, most of the campaign finance laws come tumbling down.
Meanwhile, the NRA itself only addressed the related issue of the discriminatory nature of conferring special privileges to the institutional media. They assumed the government had the power to regulate everyone, but argued that if the government was going to exempt the institutional press as a matter of legislative grace, they had to avoid triggering constitutionally prohibited discrimination by also exempting groups like the NRA.
The line between the institutional media and anyone else seeking to inform the public is quite tangled and increasingly less clear – despite Supreme Court attempts to settle the question. And the defendants in the McConnell case (the Brennan Center, Sens. McCain and Feingold, Common Cause, etc.) all were quite clear that they intended to keep pushing the envelope with new legislation in future years. Justice Kennedy in particular seemed disenchanted by the endless stream of new cases.
Perhaps the NRA is engaged in the ultimate of comic parodies. If the Court persists in drawing such fine lines, the NRA appears all-too-willing to blur them – giving Justice Kennedy yet another case.
By acting absurd, the NRA garners comic and perhaps legal attention to the idea that incumbent politicians shouldn’t be drawing such lines. After all, politicians aren’t exactly neutral observers.
And if the Supreme Court insists on twisting the First Amendment so that there’s a discriminatory distinction between the institutional media and Joe Mimeograph, perhaps the best solution for individuals and groups like the NRA is to take the Paul plaintiffs’ argument to its logical conclusion – become the Media. “If you can’t beat ’em, join ’em.”
Still, the best of all possibilities is that the Court rules that Congressman Paul and his friends are right and Freedom of the Press applies to everyone. The “Gordian Knot” of campaign finance law cannot be untangled – it should be cut. Not only should BCRA be overturned, but the limits and reporting requirements grudgingly approved in the landmark decision Buckley v. Valeo, should be scrapped as well. Only by getting the government out of the business of regulating Joe Mimeograph’s rights can Free Press rights truly be protected. Justice Kennedy’s apparent desire to see an end to such cases would be satisfied.
But no matter what the outcome of the McConnell case, the NRA’s Pythonesque potential next move is beautiful. If the majority of the Court insists on being absurd, the NRA will serve them up an even greater absurdity.
What a delicious possibility.