Tomorrow the Supreme Court will hold a special session (technically the last meeting of the October 2002 Term) to hear McConnell v. Federal Election Commission, the umbrella name for numerous challenges to the Bipartisan Campaign Finance Reform Act (aka McCain-Feingold). The Court has scheduled four hours of oral arguments. Former Solicitor General Kenneth Starr will open for the law's opponents. Incumbent Solicitor General Ted Olson and his predecessor, Seth Waxman, will lead off for the law's defenders. Tomorrow's arguments are essentially the All-Star Game of appellate jurisprudence.
For all the lawyers and briefs the BCRA challenges have attracted, the fundamental issue is quite simple. Congress claims the right to restrict and regulate political speech on the grounds that it prevents the "appearance of corruption," and that such motive is itself a valid governmental objective. This argument is completely without merit for numerous reasons, the key one being that the "appearance of corruption" is nothing more than a faith-based standard. In other words, it permits the government to initiate force in the absence of objective proof that rights are being violated. BCRA grants government agents the power to decide what acts of political speech are valid and which offer the "appearance of corruption". Such a standard can never be reasonably enforced, because it is facially non-objective. Speech and activities that I would consider illegal under BCRA will radically differ from that others, including the law's enforcers, would consider illegal. This is the trap America fell into with antitrust, and unlike the Sherman Act, the Supreme Court should not try to invent a rationale after the fact to justify Congress's clearly unconstitutional act. BCRA should be struck down, and the precedents giving rise to its creation should be overruled without delay.