Following the lead of my friend Captain Ed, I’ve composed an open letter of my own to the two individuals most responsible for the de facto repeal of the First Amendment. Rather than send it immediately, I’m planning to wait a day or two to digest the issue further, read any feedback I receive here, and send a newer, better version to all 100 Senators early next week.

Dear Senators McCain and Feingold:

The First Amendment to the United States Constitution provides that:

Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By enacting your Orwellian-named “Campaign Finance Reform” bill, you have done precisely that, first by repeating the facile mantra that “money isn’t speech,” and now by compounding that quarter-truth with an outright falsehood that non-monetary expressive conduct is money, a falsehood which Judge Colleen Kollar-Ketelly and all of your fellow Democrats on the Federal Election Commission swallowed hook, line and sinker. Whatever your so-called “reform” was intended to accomplish, what it has done, following your ill-conceived lawsuit, is to threaten to shut down the purest form of free speech that has ever existed on the planet, the “blogosphere.”

I run a blog. Not one of the giants that brought down Trent Lott, Dan Rather or Eason Jordan, mind you, but a medium-traffic blog in California that I like to think may have played just a teeny role in keeping my readers informed about the 2003 gubernatorial recall while the mainstream media wrote it off as a non-newsworthy pipedream, helping to defeat a 2004 ballot initiative that received nearly unanimous support in the MSM but which would have released tens of thousands of violent felons almost overnight, and more recently, helping to debunk a silly rumor about prostitution in Germany. I also posted my own voting recommendations, paid for by nobody, and influencing nobody except an unknowable subset of the 500-ish people who, for one reason or another, visit my site on the average day.

Senators, I have little doubt that your statements on the issues are heartfelt. Despite my long-standing opposition to limits on political contributions, I actually voted for one of you – Sen. McCain – in the 2000 primary, largely because I admired his willingness to stand up and say what he thinks rather than what he thinks others want him to think. Similarly, I have little doubt that your so-called “reform” bill was motivated by a sincere desire to “clean up” the political advertising industry and not to stifle private debate. Unfortunately, however, good intentions are not enough. As with Dr. Frankenstein, while you two may have set out to create something new and exciting, you ended up creating a monster. Having done so, however innocently, it is now your duty to slay it.

To be sure, there is plenty of blame to go around. While the lion’s share rests with the both of you, some blame must of course be shared by every other Congressman who voted for this horrible initiative, including both of the Senators from my home state (who, perhaps not coincidentally, have long demonstrated a similar disdain for the Second Amendment, the Tenth, and Lord knows how many others). Some goes to President Bush, for signing a bill he knew to be unconstitutional but naïvely assumed the courts would strike down. And lastly, a great deal of blame lies with the courts themselves, for proving President Bush’s dangerous assumption unwarranted.

But this is not about blame. It is much too late for that. Rather, it’s about a problem, and how to solve it. There are several ways it can be solved. The following list is not exhaustive, but it is a start. I’ve listed the possible solutions in descending order of constitutionality and desirability:

1. Repeal McCain-Feingold in its entirety. This would be the hardest to swallow, given that both of your names are on the bill, but it is the right thing to do. Also, to the extent the existing rules risk placing the name “McCain-Feingold” in the same category as “Aliens and Sedition Act,” it may even be the best course of action in preserving your images over the long term. No need to retreat with your tail between your legs, just urge both houses to repeal this act and promise to come back next session with a newer, better one. Call it McCain-Feingold II, I don’t care. Just make sure it doesn’t trample on ordinary citizens’ free speech rights the way the existing bill does.
2. Amend McCain-Feingold to exempt non-monetary contributions. The “reform” bill was sold on the theory that rich guys shouldn’t get to contribute millions of dollars to push agendas ordinary joes couldn’t afford to compete with. Fine, but hosting a web site is something anyone – even a homeless guy – can do. Any alleged “value” of what you post, be it general advocacy, links to campaign sites, or anything else, has nothing to do with how much money you spend on your hobby; most of us spend next to nothing. Rather, it’s entirely a matter of how many vs. how few other people choose to listen to you.
3. Amend McCain-Feingold to exempt the Internet. This is basically what the FEC tried to do in the first place. It’s not the best solution, but it works. Anyone who thinks there’s too much political advocacy on a given TV channel may have a problem, but anyone who thinks there is too much on a given web site can go elsewhere.
4. Vacate the judgment. Unfortunately, your fellow Democrats on the FEC are too hostile to the First Amendment to appeal this one. That doesn’t preclude you, the Pyrrhic victors, from getting rid of this Pyrrhic victory. If you can’t bring yourselves to fix the bad law you foisted on this country, the least you can do is get rid of this bad decision so the FEC can continue about its business as it did before.

As previously noted the above list is not exhaustive. As a practicing attorney licensed in both my home state and one of yours (Arizona), I am offering to assist you, free of charge, in drafting whatever solution you may be willing to pursue to restore the basic freedoms our soldiers bravely fought and died for in Afghanistan and Iraq, but which we now risk losing at home.

Sincerely,
Xrlq