Redstate

McCain said the decisiom was regretable. He also tried to salvage some pride by pointing out that the ruling didn't turn over the full CFR legislation. (See Drudgereport).

However, as Brad correctly points out, the case before SCOTUS this term was a narrow case that didn't really allow for the court to overturn CFR. The justices correctly acted conservativly and ruled on the narrow points of the case alone alone. Roberts hinted in his opinion that CFR could be reviewed if the proper case reaches them.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

It's war -- so when can we start shooting back at the enemy Democrats?

As follow-up, article excerpt below (Connecticut Post, 6/26)

For decades, corporations and labor unions have been prohibited from spending their treasury funds and union dues in connection with federal elections. Instead, they are required to use PAC funds, which are voluntarily donated by individuals and subject to contribution limits, Wertheimer said.

Those restrictions, however, were subject to widespread evasion as corporations and unions used unregulated money to pay for "issue ads" and "grassroots lobbying ads" that were really thinly-disguised campaign ads.

Again, the restrictions of McCain-Feingold are NOT a ban on the ads in question, just a ban on ads that have been financed in a particular way, and it is at least arguable that eliminating such restrictions will take us on a path to de facto unregulated campaign finance. I am conflicted on this issue, because I am sensitive to the First Amendment issue, but I am also reluctant to proceed toward a situation in which a particular industry (e.g., oil) or union can end up swamping the airwaves with ads that, in effect, endorse or attack particular candidates. I think at the very least we should all (1) seek to understand what these restrictions are and what they aren't, and (2) seek to understand where the principles behind our positions on this issue will lead us if taken to their logical conclusion, and ask if that's where we want to end up.

2003 opionion of Fred Thompson per Marc Ambinder's blog (now with The Atlantic, formerly with Hotline)

In 2003, former Sen. Fred Thompson sharply criticized the sort of "sham issue ads," ostensibly banned by McCain-Feingold bill, that the Supreme Court appeared to revive in yesterday's Wisconsin Right to Life decision.

Thompson's view of those provisions are contained in an amicus brief he filed with the Court in 2003, when it first considered the constitutionality of the Bipartisan Campaign finance Reform Act (BCRA).

Thompson wrote that "sham issue advocacy by non-party groups" was a "problem" that BCRA "addresses." Congress, Thompson wrote, "had a compelling interest in enacting the BCRA reforms. The rapidly increasing practices of raising and spending soft money (with a significant focus on sham ‘issue ads’ that unquestionably influence federal elections) fully justify the BCRA reforms.”

Thompson refers to a series of television ads run by labor unions and national parties in the 1996 presidential election, ads he believed were "highly problematic in their own right because they were used to influence federal elections and not restricted to generic party-building uses" because they were funded from general treasuries -- that is, from soft money accounts.

Link to Thompson's amicus brief below. I've only had a chance to scan it for now, but looks like important reading for those concerned with this issue.

http://www.supremecourtus.gov/bcra/amcur_fred_thompson(02-1674).pdf

The law prohibits any ad that mentions a candidate within 30 days of a primary or caucus or within 60 days of a general election, if it is paid for by a corporation or union, or paid for by another entity using any corporate or union money. Nor is there any requirement that the ads explicitly or "implicitly endorse or attack candidates." See 2 USC 434f.

As the language you quoted from my post says, it applies to "most" independent broadcast ads. That is also a correct statement.

So I urge you to take the time to make sure you've got it right before posting something.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

No, not mistaken. For you to say that the law constitutes a "ban on most independent broadcast ads" without mentioning that it only prohibits ads that are FINANCED in a particular way (through the general funds of corporations or unions rather than through regulated mechanisms such as PACs) is misleading, to say the least. The same ads you are referring to in terms of content and timing are permissable (NOT "banned") if they are financed through such regulated means. There is a very significant difference between banning a type of speech per se and regulating the financing of such speech, and you either deliberately or mistakenly failed to make that important distinction. It is perfectly appropriate for me to point out your misleading language to those who may be unaware of the aforementioned important distinction.

So, to use your words, "I urge you to take the time to make sure you've got it right before posting something."

Sorry, BrooksRob, but you are simply wrong. As a matter of fact, based on pre-McCain data, the overwhelming number of broadcast ads that used to air within the 30/60 day window (not including those run by campaigns and parties themselves - that is, that are "independent" ads) are in fact banned by McCain-Feingold. That's why the law was passed.

Limiting how one pays for an ad limits what ads can air. Surely you would consider it a limitation on your travel - indeed a ban on "most" of your travel, I'll bet - if the government passed a law saying no corporate money could be used to fund your travel - including a limitation on paying for travel (including the cost of a car, insurance, etc) if you have received any salary, expenses, or other payments from a corporation. And surely you would consider it a ban on most travel if the government prohibited travel in any motorized vehicle - though of course you could always walk, bike, or ride a horse.

A corporation without a PAC, of course, can't run an ad at all. Most corporations in America, including the vast majority of non-profit issue groups, do not have PACs. It is expensive and time consuming to establish a PAC, and the fact is that smaller groups find the costs most burdensome. Many others - especially small or new groups - might have a PAC but one without sufficient funds to pay for a serious advertising campaign. They, too, are limited.

The provision doesn't talk about financing ads "in a particular way," as if it would be OK if you used a Visa card but not if you wrote a check, or some other ready substitution. It was intended to, and does, limit ads funded by certain organizations and sources. If financing ads through other sources were not an issue, the provision would make no real sense, and no one would care about it either way. The only purpose of the provision has to be to make it so that some ads - funded by sources the government has decided are undesireable - will not run. It may be some other source or speaker can be found for the same message (though it may not be so), but that is not the same thing. If I am not able to do something, I may be pleased that someone else does - but I am still prohibited from doing it.

Reform advocates can't quite figure out what they think McCain-Feingold did. Sometimes they argue that it is hardly a limitation at all - why, pretty much any old ad can run, if paid for in a government approved manner. But then why bother? Other times we are told it is vital - indeed, we are being told consistently that this holding of the Court this week "guts" the law. But how can that be, if the law doesn't really ban much activity? Either the ban is largely irrelevant, or the decision is largely irrelevant. But you can't have both. And the ban cannot be largely irrelevant if it has no serious effect - that is, if it does not limit, i.e. ban - a great many ads.

My final comment wasn't intended to be snarky - you struck a tone in your original comment that you weren't sure you were correct, etc. Apparently, you actually did feel pretty sure you were correct.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

You keep saying I'm wrong, but then failing to offer a supporting argument. I said that your post was MISLEADING in that it referred to ban on "most" independent ads with particular content and timing without explaining that such ads are NOT banned, but rather that such ads are permissible only if FINANCED through PACs (or perhaps other regulated means) rather than from the GENERAL FUNDS of unions or corporations. You are now pointing out that the requirement placed on a corporation or union of establishing a PAC is burdensome, making it more difficult for some groups to air such ads. That may be the case, but that does not refute my argument that to simply state that the law bans such ads -- i.e., that a particular type of political speech is banned -- without explaining that whether or not is permitted is a matter of how it's FINANCED is misleading in a significant way. As an analogy, if a company's policy is that vendors (its suppliers) are not allowed to pay for an employee's meals, is that the same as saying that the company bans its employees from eating meals? Well, telling people that a particular type of ad is banned without telling them that it is permissible if financed one way (albeit a more burdensome way) and prohibited if financed a different way is indeed misleading, and nothing you have said contradicts this point.

Now, you can argue that the effect of this burden of setting up and managing a PAC (cost, time, etc.) has the practical effect of preventing some corporations and unions from airing these ads (as would a lack of funds, by the way, but no one suggests giving out free air time to every single group if they lack funds to air an ad), but that is still an important distinction you should have made if you wished people not to be misled into believing that such ads were banned simply based on their content, timing and source. Hopefully I don't have to explain to you the difference between banning a type of political speech per se and requiring it to be financed by particular means. Reasonable people can certainly argue that any such requlation is a violation of the First Amendment and/or that it is bad for the nation for some other reason, but from a First Amendment standpoint there is a significant difference between banning a type of political speech and requiring that it be financed via regulated mechanisms. Yes, the latter may impose costs that have the effect of preventing some groups from airing these ads -- and feel free to argue that that is wrong or even a violation of the First Amendment -- but don't equate it with a ban on such speech, which is the effect of your referring to the law as a ban while omitting the factor that determines if one of these ads is permissible or not -- how it is FINANCED.

As for your reference to my initial comment vs. subsequent comments ("you struck a tone in your original comment that you weren't sure you were correct, etc. Apparently, you actually did feel pretty sure you were correct."), let me introduce to you the concept of time. When I first commented, I had not yet done all the fact-checking I intended to do, hence my expression of uncertainty on the point in question. Subsequent to that initial comment, I did such fact-checking and found my contention to be correct. So time (used for research) accounted for this difference, not disingenuousness as you imply.

I'll not respond to more nonsense.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

I feel for you, but a word of warning, don't ask him about tax cuts either....

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The CIA has better politicians than it has spies - Fred Thompson

Thanks for chiming in with a reminder of your ignorance and lack of reason.

but maybe you can go take a poll of professionals to find out what you think about it.

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The CIA has better politicians than it has spies - Fred Thompson

Sometimes I envy the capacity of people like you to maintain blissful ignorance, just believing what feels good and keeping a healthy distance from contrary information, however credible. Oh, and not only that, but to actually manage to feel superior to those who seek the best possible information and try to maintain some objectivity rather than starting, as you do, with an emotionally-driven conclusion and limiting yourself only to information that reinforces that feel-good conclusion. Amazing.

because it's much easier to outsource your opinions to someone else, as long as you can refer to them as an "expert." Why think for yourself?!?! Who needs to when we have the benevolent elites around to tell us what to do, how to think and what to think about what to do!

Unlike you, I can think for myself.
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The CIA has better politicians than it has spies - Fred Thompson

That is just so absurd. If I want to know the likelihood of rain tomorrow, I check the weather forecast, perhaps even a few of them. If they all say there's a 95% chance of rain tomorrow, I don't say, "Duh, gee, I've observed that the last 4 days have been sunny, plus I found out that on tomorrow's date in 2004, 2005 and 2006 it didn't rain, so what these experts (meteorologists) are saying is worthless. It's definitely NOT going to rain tomorrow. And anyone who basis his view of the likelihood of rain tomorrow on the consensus of meteorologists' forecasts is just outsourcing his opinion."

Am I SURE that it will rain tomorrow. NO, and neither are the forecasters. Am I SURE that they've even got the probability right? NO. But if they have resources, training, tools, etc. that far exceed what I have to make such a forecast, I'm going to assume that they are at least more likely to be correct (that it is highly likely to rain tomorrow) than I would be to draw the opposite conclusion. That's the difference between us. It's called common sense.

And you are arguing with the weatherman. Here you are arguing with perhaps the expert on campaign finance issues. In case you didn't know, some info on Brad Smith (wikipedia caveat):

Smith is a former Commissioner, Vice Chairman and Chairman of the Federal Election Commission (FEC) and currently serves as Professor of Law at Capital University Law School in Columbus, Ohio. Before his nomination to the FEC in 2000, Smith was seen as one of the leading experts in campaign finance in America, and has often expressed strong views against campaign finance reform, with his writings on campaign finance and election issues having appeared in noted publications like the Yale Law Journal, the University of Pennsylvania Law Review and the Harvard Journal of Legislation. He had also been called on to serve as a witness before the United States House of Representatives and United States Senate on matters of campaign finance.

The authority is personally disagreeing with you.

:)

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The CIA has better politicians than it has spies - Fred Thompson

I don't expect you to understand any of the following, but for the benefit of others:

First, you are inadvertently and obliviously pointing out that I do not simply swallow whole what an expert says. I was indeed aware that he is an expert on this subject, yet I am challenging him on an aspect of his post based on facts I have obtained elsewhere.

Second, you mistake acceptance of the opinion of one expert with an inclination toward deference to the conclusion a broad, strong consensus of experts, including those who have, if anything, an incentive to reach a contrary conclusion but who nevertheless agree with that of the others (e.g., Bush's own economists and supply-side economists who favored the Bush tax cuts and favor extending them all saying that the net impact would be LOWER revenues, even though they favor such a policy for other reasons).

Third, you fail to understand the common sense concept that credibility of an expert is a function not only of knowledge but also of objectivity and sincerity -- i.e., lack of bias and agenda. Obviously Mr. Smith has an agenda, or did you miss his overt "plug" for the Center for Competitive Politics, which he founded.

Fourth, Mr. Smith is not contradicting my statement that the law only prohibits the ads in question if they are FINANCED outside of the specified (regulated) mechanisms, PACs (or perhaps other regulated means) rather than simply banning them based on their content, timing and source as his omission would lead readers to believe. He seems to be arguing that, because the cost of creating and managing PACs is prohibitive for some groups and that the practical effect is to limit their ability to engage in such speech (which is probably true), the practical effect is a limitation of speech to the extent that it is a de facto ban, but such an argument, while it may have some merit, is a categorically different argument regarding a very different law than would be the case if the law simply banned such advertisements based on the content, timing or source, rather than requiring such ads to be FINANCED in particular ways. And failing to make that distinction and leading readers to believe that the law simply bans such speech is misleading and irresponsible. Rather than address my point regarding this important distinction, Mr. Smith instead declined and called it "nonsense".

Fifth and finally, you actually think you have made a brilliant, check-mate type point despite all the flaws in your logic that I have described above. I don't know what's worse, wasting my time responding to you or embarrassing you by pointing out all these flaws in your argumentation and how comical it is that you are so proud of your nonsensical points. Fortunately for me, you started with the insults on this thread so I guess I don't have to feel guilty about the latter. How much more time I should waste is still an open question.

about zero content. Try again sparky.

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The CIA has better politicians than it has spies - Fred Thompson

Apparently you mistake zero comprehension (on your part) for zero content.

I understand just fine, we're both covered in mud (and so was Brad until he left to clean himself off) and you enjoy it (though I'm having a bit of fun for now).

You like to take up a lot of space to say very little and yet you state it over and over, like repeating the same thing counts to further your argument. A little hint, it does not. So next time you can just cut & paste what you have said before, but I think you like to type (so have at it). Actually you do both, but hey, just keep repeating yourself, it really strengthens your argument. It does, for the more you repeat yourself, the stronger your argument gets. And people won't see right through you, just keep repeating it.

Going back to your stupid weather analogy, let's say the weatherman says it is going to rain tomorrow, and yet tomorrow comes and it doesn't rain. We start this discussion the day after. Your whole argument would be that I should believe what the weatherman said 2 days ago because it's going to rain yesterday when it didn't. I don't need the weatherman to tell me what the weather was yesterday - you seem to think he is right, even in the absence of precipitation.

Off to have dinner with the wife!

BTW it was partly cloudy yesterday.

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The CIA has better politicians than it has spies - Fred Thompson

Your comment re: the weather forecast analogy is, of course, nonsensical. Obviously weather forecasts have been wrong and will be wrong sometimes in the future. It doesn't change the common sense approach to using the consensus meteorologists' forecast as an educated guess regarding probabilities of upcoming weather, rather than relying on a few crude observations by a layperson to confidently reach opposite conclusions and base important decisions on those conclusions. Hopefully if all the forecasts said (just a moment ago) 95% chance of rain tomorrow you wouldn't assume 0% chance of rain based on some crude "analysis" (for lack of a better word) that you did and proceed to plan a big outdoor event that would be ruined by rain. But then again, maybe you would. Can't believe I'm still trying to talk sense into you.

And if the weatherman said it was going to rain yesterday and it didn't, I wouldn't call him right. I'm just extrapolating your stupid analogy bucko.

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The CIA has better politicians than it has spies - Fred Thompson

You are beyond help.

Oh, and you would only conclude that it's definitely NOT going to rain tomorrow if that's the concludion that FELT best to you for some reason -- let's say, you don't feel like fixing the hole in the roof today. I try to be objective. You stick with conclusions that feel good. That's another difference between us. That one is called maturity.

Excellent counter-point.

Just to recap for anyone following this dialogue:

1) The post referred to "McCain-Feingold's hated ban on most independent broadcast ads that merely mention a candidate by name with 30 days of a primary of 60 days of a general election."

2) The above made no mention of the fact that the law does NOT ban such ads, but rather requires that corporations or unions PAY for such ads via PACs rather than with general funds (since PACs are subject to regulations such as limits on the amount each contributor can give).

3) This omission of an obviously central point gives the false impression that the law bans a type of political speech based on content, timing, and source (union or corporation) rather than requiring it be FINANCED in a particular way.

4) From the standpoint of the First Amendment, there is obviously a significant difference between banning a type of speech and requiring that it be financed in a certain way, and the failure of the post to make that distinction in any way was at best a careless omission and at worst a deliberate attempt at misleading hyperbole intended to enhance the argument that the law violates the First Amendment.

5) I brought this to the poster's attention, and, claiming that I was "mistaken", he proceeded to point out that creating PACs may be prohibitively costly for some groups, and thus the practical effect of the law would be that such groups would not be able to air such ads (I also pointed out that groups that simply lack enough money for ads are also unable to run ads, but that doesn't constitute a violation of their First Amendment rights). I readily acknowledged this possibility, but pointed out that it does not refute my point that there is a difference between banning a type of speech and requiring that such speech be financed in a particular (regulated) way, even if the regulations add cost and have the practical effect of limiting the abiity of some groups to finance and air these ads. I also acknowledged that people can have principled disagreement over whether or not there should be such regulations (or any regulations at all), from a First Amendment standpoint or otherwise, but that we should not confuse such financing regulations with banning a type of speech. There is a fundamental difference between the government banning a type of speech and the government establishing financing regulations that have the practical effect of making these ads unaffordable to some groups. Again, one can be opposed to the latter on constitutional or other grounds, but to ignore that distinction is irresponsible.

6) Oh, and then the poster refers to my comments as "nonsense".

Wow. Go at it guys! BrooksRob seems to be one of those people who mistakes disagreement with his argument for a failure to address his argument. But to recap once again:

a. McCain-Feingold prohibits, and was intended to prohibit, the airing of most independent ads run close to an election that even mention a candidate. BrooksRob doesn't really dispute this - he just keeps arguing that in some hypothetical world maybe they would keep running. I think it would be pretty clear to anyone who has waded through this dialogue what the law prohibits, but he can't let it go. He demands I agree with him about my original characterization of the law. Sorry, BrooksRob, but I don't agree with you. The fact that a ban works indirectly rather than directly doesn't make it less of a ban. Your point has been made and readers can judge - let it go.

b. Brooks may have gotten a false impression about what ads are banned but I don't think most readers did. The post says nothing about why or specifically how ads are banned - it just makes clear that "most" of these ads are banned, and that is true. But we should also note that these laws do not take place in a vacuum. The type of ads that McCain-Feingold banned tended to be used more against incumbents than in favor of incumbents. Incumbents knew this - the congressional record is littered with quotes about the need to stop attacks on members. So one could, in fact, interpret the limitations as being motivated by content. This illustrates a key point - you could write a book on this stuff (in fact I have) if you want to tease out every nuance and complexity in the law, but for busy blog readers I'm not going to do that every time. I'll stand by the statement as accurate - and I'm sure in any case that my McCainiac friend has clarified things for anyone who might remain confused.

c. Meanwhile, we could apply BrooksRob's type of argument and go after him were we so inclined. BR keeps saying that the law only requires ads to be "financed in a certain way." Yes, and if you were a member a Wisconsin Right to Life, that "certain way" prevented your organization, to which you may have paid dues precisely for this purpose, from running the ads it thought would be most effective when they thought they would be most effective. Again, this isn't something simple like paying with cash instead of a personal check. It's more like the government demanding that you buy your house with what is in your savings account, and under no circumstances may you use borrowed money to buy a house. I suppose that wouldn't technically be a "ban" on home ownership (score one for BrooksRob), but for most Americans, such a law would have the effect of a "ban" on home purchases (score one for me). That's what McCain-Feingold did, and was intended to do - knock a certain number and type of ad off the air. Again, were that not its intent and effect, neither BrooksRob nor anyone else would care.

d. And yes, there is a point at which BR's insistence on sticking to a point as if it is crucial to the debate, and the insistance that anyone who disagrees has somehow failed to address one's point, is indeed nonsense.

I don't mind your views BR, I'm glad when a post spurs comment. But I don't like endless repetition that detracts from overall readability for other visitors. Take away what you would like to take away from this entry, but please, do me a favor and don't post anymore on this particular blog entry. Your point has been heard and noted by anyone who has read this far.

Thank you.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

Excuse me, Brad, but I don't think it's appropriate for you to tell me not to post further.

To be absolutely, perfectly crystal clear (not to you -- you already know exactly what I'm saying, your representations notwithstanding -- but to others), I have said very clearly that I don't dispute that the required financing mechanisms (e.g., PACs or perhaps others of which I'm unaware) place an additional burden on those who wish to run these ads, and that the practical effect would be that some groups will not be able to afford to run these ads. My point was simply that your failure to explain or indicate in any way in your post that what you characterized as a ban on a certain type of political speech (ads with particular content, timing and source) was actually only a ban on such ads if they are FINIANCED outside of the required mechanism(s). You thus engaged in a significant degree of misleading hyperbole for rhetorical effect.

It would have been more appropriate and forthright for you to have characterized the law for what it is, and then proceeded to make the argument that, while it is not a ban on such ads per se, the required means of financing will create such a burden that the practical effect will be sufficiently similar to that of an actual ban on such ads that it is just as bad as a matter of policy and in terms of constitutionality. Then readers could have considered THAT argument. But you instead chose to take the more convenient and more emotion-rousing route of characterizing the law as a ban on a type of political speech based on content, timing and source. It was either a deliberate omission or a careless, albeit quite convenient, one. In either case, it is quite lame for you to pretend the distinction I'm making is insignificant and to deny that it would have been appropriate for you to have made that distinction yourself in your post and proceeded to make the necessary related argument rather than to just assume it away and decline to inform readers of the true nature of the law and then made the appropriate case against it.

To repeat in case it's still unclear to anyone, I'm not saying that you wouldn't be able to make a strong case that the law is bad policy or that it is unconstitutional BASED ON ITS PRACTICAL EFFECT. I'm simply saying that there is a difference between a ban on a type of speech and restrictions on financing that type of speech that have the practical effect TO SOME (DEBATABLE) DEGREE of preventing such speech, and that you mischaracterized the law (by omitting an obviously central fact) to make it sound like the former rather than the latter, which is what it is. I think a responsible post would not have made such a "mistake" (to give you the benefit of the doubt as to intent), and I think a responsible response to my raising this point would not have been to call me "mistaken" and deny any flaw in the post, but to acknowledge that I am correct, thank me for pointing out the significant omission in your post, and THEN proceed (as you did) to make the case that even the law accurately characterized is still just about as bad as an outright ban would be due to practical effect.

Frankly, I really don't see why we have to disagree on anything here. I'm sure you realize that the type of distinction I'm making (revocation of a right per se vs. some degree of practical effect that may arguably have the same result) is significant and important to note, even if you think that, once the distinction is made and the law is accurately described, you can still make a strong case against it. To make such a misleading omission and mischaracterize a law just because you are confident that you could make a strong case against the ACTUAL law (rather than the straw man law) is simply inappropriate. Do you actually disagree?

Brad, with respect, I want to try another approach. Please indulge me by telling me if you agree or disagree with my contentions below, which have been my contentions all along:

1) There is a fundamental difference, in terms of considering a law's constitutionality and considering its pro's/con's as policy, between a law that revokes a constitutional right (e.g., a First Amendment right) per se and a law that imposes regulations that have a PRACTICAL EFFECT of making the exercise of that right more difficult and which MAY (arguably) create such difficulty as to have the same, or very similar, result as a revocation of the right would have. Agree or disagree?

2) There is a fundamental difference in the nature and content of the arguments that must be presented to make a case against the former type of law (in #1 above) vs. the latter (arguing that a right has been infringed by the law per se vs. arguing the extent of practical effect). Agree or disagree?

3) Even if one is confident that he has a strong case on the basis of practical effect, it is erroneous at best and disingenuous at worst to characterize the latter type of law (the one with the presumably objectionable practical effect) as the former type of law (revocation of a right per se), particularly when at least some in the audience may be unaware of the distinction. Instead one should acknowledge the true nature of the law and present the appropriate argument against it (the extent of practical effect). Agree or disagree?

4) McCain-Feingold is the latter type of law. It doesn't seek to ban the ads in question per se. They are legal if FINANCED one way (via a corporation's or union's PAC) and illegal if FINANCED a different way (via a corporation's or union's general treasury funds). This financing restriction may arguably have the practical effect of making it impossible for some -- perhaps many -- groups from exercising their right to air these ads (due to the cost of creating and managing a PAC, which some groups will find practically prohibitive). Agree or disagree?

5) You wrote in your post, referring to the Court's decision: "It does not even mean the death of McCain-Feingold's hated ban on most independent broadcast ads that merely mention a candidate by name with 30 days of a primary of 60 days of a general election. But it does open a significant exemption to that ban." That language, by omission (failing to mention that such ads are not banned based simply on their content, timing and source, but only if they are not financed by the specified, regulated means) may quite possibly create the false impression that McCain-Feingold is the former type of law, an infringement of a right per se. In fairness, you had mentioned previously in the post that the timing restriction applied in this particular case "because the ads mentioned Senator Feingold and were paid for, in part, with money donated by corporations", but given your statement re: McCain-Feingold (quoted above in this paragraph), this line does not suffice as a good-faith, careful effort to accurately characterize McCain-Feingold. Agree or disagree?

6) It is easier to arouse emotion through rhetoric that claims that a law infringes upon a fundamental right -- perhaps our most precious right, the First Amendment -- per se than by explain that the law doesn't really infringe on that right per se, but will make it much more difficult for many to exercise that right. Agree or disagree?

Hopefully we can at least agree on #1 through #4.

1. No, that is incorrect and I do not agree. See e.g. U.S. Term Limits Inc. v. Thorton. It depends on the facts.

2. No I do not agree. It depends on the facts. See above.

3. I agree as you have framed the point.

4. This is a far less serious distinction than you seem to think. Thus, I disagree with most of your statement.

5. I believe my statement is an accurate description of McCain-Feingold. I am sorry that you are not persuaded. I don't understand your inability to let it go.

6. Irrelevant, given 1-5.

Look, BR, as I said before, anyone who cares understands your point by now. I think you are wrong because 1) I don't think you grasp the practical impact of the law, and I don't think you have thought it through enough - No shame there, David Souter doesn't either and he's a Supreme Court Justice; and 2) I think you are being (perhaps intentionally) obtuse as to the real effect of the law, and as to the basic understanding one would get from my post.

Again, let it go. You have made your point. It is not necessary that the whole world agree with you.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

Given that it is unlikely that you misunderstood my enumerated statements, I have to suspect your responses indicate a deliberate effort to obfuscate to shield your hyperbolic rhetoric. I will stop here since I don't believe you are discussing or debating this matter in good faith and will simply continue to reflexively reject any point that could be construed as any type of concession.

I scanned a couple of summaries of the case to which you referred me, and I must admit I'm not sure what your point was, but if your point re: the case we are discussing is that it is possible that the practical effect of a law can make exercising a right so much more difficult that it yields the same (or similar) result as would a ban per se -- and can be considered equally unconstitutional, then I have already acknowledged that. Your response to my statements #1 and #2 that it "depends on the facts" (as if you didn't understand my statement) is exactly MY point. If the argument is that a law doesn't infringe on a right per se but has the PRACTICAL EFFECT of having a similar result, then you have to offer facts (or at least theory, I suppose) that substantiate the claim of that practical effect, and that is a different case to make vs. arguing that a law infringes on a right per se. I'm sure you're intelligent and expert enough to realize that that is what I'm saying, and I wish you had chosen to give me a sincere response.

Also, you write, "I think you are being (perhaps intentionally) obtuse as to the real effect of the law". What evidence do you have that I am underestimating the real effect of the law? Yes, I'm saying that as of my current level of familiarity and understanding of the practical impact, which is just superficial at this point, I have not concluded that the practical effect is so extreme as to make requirements that these ads be financed via PACs and an outright ban on these ads to have equal constitutional merits (or lack thereof). But my point -- and here's where I wonder if YOU'RE the one being deliberately obtuse -- is simply that the distinction is important to make and the case to be made (arguing practical effect vs. arguing an infringement of a right per se) requires a different argument (and one you provided in comments subsequent to your post, and which I have not disputed). I've said repeatedly that it's quite possible you can make a strong case on the basis practical effect, but that your post should have made clear the true characteristics of the law and presented that relevant and necessary argument. I realize that you are highly confident that you can do so, but that does not mean that it is appropriate or responsible for you to ignore this distinction and give a false impression (i.e., that this law infringes on a right per se rather than making the exercise of that right much more difficult in practical terms).

If you don't wish to continue this dialogue, feel free not to reply to me, but my hope would be that you respond substantively to my enumerated agree/disagree statements (not to straw men). If you do choose to respond, please don't assume you can dictate that your comment is the last word in our dialogue.

I made a good-faith effort to break down our discussion into its core elements and see where we can agree and respectfully disagree, but I don't see a similar good-faith effort on your part.

Quick thought/question, just in case you have any remaining interest in serious, substantive, sincere dialogue (assuming you did at some point):

If the law were changed from the current McCain-Feingold, which prohibits these ads unless they are financed in a particular (burdensome) way to a new law that simply banned these ads outright ("these ads" in terms of the parameters of content and timing that we're talking about), regardless of how a corporation or union wished to finance them, would you not see such a law as even more of an outrage against the contitution? Would you not see a noteworthy difference? Would the arguments you presented against such a law not be different in nature than the "practical effect" argument that is presented currently vs. McCain-Feingold?

Based on everything you've said so far to me, I would have to conclude that you see no important difference in terms of how obviously or extremely such a new law would violate the First Amendment, and that the nature of your argument would not change either. Yet I find both hard to believe.

I would appreciate it if you would indulge me with an answer to this question.

As a note, since you referred to me as a "McCainiac", yes I do like McCain (although I would also be ok with Rudy and Thompson so far seems ok to me, although I need to learn more about him), but as I've said on this thread, I am conflicted on McCain-Feingold. I do acknowledge respectable arguments that it violates the First Amendment. I would also be concerned about completely deregulating campaign finance. And I haven't arrived at a conclusion yet as to the extent of validity of the arguments vis-a-vis the First Amendment, either in principle or in practical effect, nor have I fully explored and considered how far the logic in such arguments takes us toward complete deregulation. So my comments are not driven by some diehard pro-McCain-Feingold sentiment or agenda, as you seem to be implying. I'm just calling a spade a spade, as I have done in criticizing McCain (and Rudy) elsewhere where I felt it was called for, despite the fact that I like those guys. Not every comment or critique is an agenda-driven attempt to distort an issue, Brad. Some people feel compelled (and obligated) to put all the relevant facts on the table, make an argument in light of that full set of facts, and let the chips fall where they may.

about how compelled you are to put all the facts on the table. This is a blog I am writing, not a treatise for your personal benefit.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

that were we all to see BrooksRob in person, he would have a cookie jar perpetually attached to a clenched fist full of cookies.

ok, bricklaven, I know I made you look absolutely silly in that other thread the other day (although it didn't take much effort -- you did most of the work) and you're feeling embarrassed and spiteful, so go ahead and let it all out. When you spot a comment by me on some other thread on an unrelated topic like this one, just drop what you consider a clever line of ridicule (in lieu of an actual argument, of course) and maybe it will be cathartic for you. Best of luck.

Due to their quantity and snide overtone.

A little more tact and discretion would earn you much more respect and credibility, as well as save you from having to bloviate in neverending crescendos.

Regards.

There ya' go. Good. Let it all out. Best wishes on a speedy emotional recovery from your embarrassment the other day. And to avoid any stress that could inhibit your recovery, continue repeating to yourself that Romney is by no means a flip-flopper, and that the entire conservative and mainstream media has conspired to take quotes, video clips, etc. wildly out of context to create a false appearance. Yes, that's it, no flip-flopper at all. There, there, Bricklaven. It's gonna be allllll right.

Oh, and thanks for showing me the how NOT to be "snide" by jumping into a thread for the sole purpose of dropping a line of ridicule (your not-so-witty "cookie jar" comment) while offering no argument relevant to the subject of this thread, let alone relevant to my particular comments.

Straw man, sir. Not asking for a treatise, just the inclusion of one central fact rather than deliberate omission to artificially enhance one's case and avoid arguing the relevant argument.

And I haven't arrived at a conclusion yet as to the extent of validity of the arguments vis-a-vis the First Amendment, either in principle or in practical effect, nor have I fully explored and considered how far the logic in such arguments takes us toward complete deregulation.

Maybe you could find some random "expert" in the field who is willing to do it for you?
---
Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Amusing to see someone proud of a lack of common sense.

Anyone looking for a funny argument between a prof of law (an elite and reknowned expert on the subject matter with an impressive Wikipedia article) and a complete moron needs to read the upthread. You have to read Brad Smith's total mastery over unfortunate BrooksRob throughout the above threads.

Best part is people (especialy my good friend Darin H) chiming in to mock BrooksRob and watching BR continue his self rightous fantasy. Rarely do we get a glimpse of such a pathological self rightous and completely uninformed idiot being trashed by a reknowned expert in such a manner. The funny part is that BR doesn't get it.

I imagine the editors didn't kick BR out because the entertainment value was simply delicious. Best laughs I've had in ages! There should be a RedState awards program for "best and worst of...". This one would get something.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

If RedState had an award for a comment that was most purely rhetoric with no substance, all attack with no argument, it would be yours. You are obviously a moron, and the worst kind of moron: one who is oblivious to the fact that he's a moron, who actually feels intellectually superior to a non-moron, and who proudly disparages the non-moron. OK, this comment of mine would be in the running for that award, but I'm responding to your comment, and I've obviously put forth very substantive arguments on this thread, so in light of that context, your comment takes the prize. Perhaps at some point you'll have enough self-confidence and ability to debate an issue rather than just spewing baseless ridicule. Good luck with that.

If I donate my time as a campaign worker, no-one objects. If you donate money to pay for my time as a campaign worker this is suddenly evil and needs to be regulated. The result is that only the very rich - who don't need to work - and the very poor - who have minimal living costs - can donate their time. By comparison, the rights of the middle class person with a mortgage to express their views and support the candidate they wish to support are heavily curtailed.

Quentin Langley
Editor of http://www.quentinlangley.net

International Editor of

Apologies to all. My response was meant to an individual poster, and was placed as a response to the blog. Oh well. Hard to get it right when you're laughing so hard.

: )

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

Give me a break and grow up. First, don't even pretend I initiated the insulting tone with you. Second, your post offered nothing but baseless ridicule. No argument whatsoever. And by the way it proves nothing if most folks on a thread disagree with me on a position. And just to expand the possibilities, it's possible -- POSSIBLE -- that you're not a moron, but rather an immature person without any intent, ability, and/or self-discipline to view a series of arguments and counter-arguments objectively in this case and judge their relative merits accordingly. Which brings me back to...grow up. Of course, if you are indeed a moron rather than simply immature, I don't know if there's much you can do about it except perhaps to study logic and hope you can grasp it.

Oh, and as for Brad Smith, if I need to spell this out for you (it's common sense for most people) the credibility of an expert depends on objectivity and sincerity as well as knowledge, and the former is obviously suspect given that Smith has an overt agenda.

Perhaps you should tell the editors that their guest is not credible, objective, nor sincere. While he may have a view (what you call an agenda) I think that questioning his reasoning because of sincerity issues is par for the course for the likes of you. Do you now understand what I mean by classless?

I really suggest you stop while you're behind.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

Give me a break, and again, grow up! Now you're trying to intimidate me by raising the specter of getting banned. First, I didn't say to Smith that he was insincere, but since you keep insisting that there's no reason for me to question anything he says because of his expertise, I pointed out that, while he has expertise (knowledge), he may lack *objectivity* or *sincerity.* Most people wouldn't need that pointed out to them. It's common sense. And it is not crazy speculation to believe that a leader of a political cause may lack objectivity or perhaps even complete sincerity (as opposed to some spin). And no, I don't assume that those who disagree with me are insincere. That's another baseless assertion of yours.

Funny thing.

1) You brought up his sincerity (your word) 2 comments ago.

2) You accuse me of making stuff up (like the "sincerity" issue) but then you do it yourself! Did I bring up being banned? No I did not. I did however offer you the opportunity to directly address your comments to Eric. That you chose not to suggest you might be sharper than I first gave you credit for.

In the words of Buzz Lightyear, "You are a sad, strange little man".

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

misrepresentation on your part

No, you initiated the insulting tone to everyone who disagreed with you. I just pointed it out and how amusing I found it to be. I didn't claim to offer anything more than ridicule in my post. But it wasn't baseless as you assert. Everyone else in the discussion noticed that you were acting poorly, and the more the facts were presented (and the more the credentials of the main person you were arguing with) the worse you made yourself look by resorting to the kinds of paranoid statements you made (and continue to make).

You should at least consider that you are alone against a roomful of people that are put off by you behaviour. But I guess we ALL must be wrong next to you.

And it's not most folks disagreeing with you. It was ALL the folks, including a distinguished guest of the editors who is widely considered the prime expert on the subject matter on the globe.

In terms of being a moron, it's "possible" I'm not one. Now that we've read what real "baseless" ridicule looks like we can add hypocracy to your resume.

In terms of maturity, that is an accustation best judged in a roomful of scholars who try to reason with a single individual who not only lacks a fundemental understanding of campaign finance law, versus Darrin H, Hoosierteacher, and Brad Smith (who has a greater track record than the entire RS site put together on this matter). Let's see, one individual claims everyone is out to get him, picking on him, wrong on the issues, wrong on the law, wrong on the "understanding" of the field of the issue, a bunch of morons, and immature. The rest of the group (with an impressive background on the subject matter and a long history at RS) thinks the individual is simply wrong and behaving like a child.

Yes, I'll take the group in that case.

In the meanwhile I'll ignore further posts until you apologize to Smith. At RS we don't typicaly insult our guests and pretend to have a greater expertise that world reknowned experts who deign to visit us.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

Based on your utter lack of objectivity and logic, your preference for empty rhetoric over substantive argument, your application of double-standards with regard to tone, and your inappropriate accusations, I will be more than happy for you to ignore my posts henceforth.

____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

yeah, you just go ahead and keep company with people who agree with you on everything and don't raise any legitimate challenges that make you uncomfortable, and keep voting based on who you'd rather have a beer with. I just hope most Americans and most Republicans are more sophisticated, intellectually curious, mature, and responsible than you.

And by the way, I appreciated Brad Smith's post, too. But he did overstate something or at least worded something in a somewhat misleading way, so I provided information to avoid any misunderstanding. And he should have been willing to admit that I was right instead of stubbornly rejecting my point by putting forth an argument that didn't hold water. You may like Smith's position and you may appreciate his participation on RS (as I do), but try to have some semblance of objectivity (not that I expect you to). If you did so you would take the his arguments and mine on their merits and ask which made more sense and judge impartially. I doubt you've done that.

And I'd be willing to bet quite a lot that you have a blatant double-standard. Someone who raises legitimate points arguing against your side of an issue is irritating, and someone who raises legitimate -- or even lame -- arguments on your side is a great guy with whom you'd love to have a beer. I, on the other hand, love to have beers with people who agree or disagree with me on any number of issues (if we get into politics at all), as long as they approach the topic intelligently. In fact, I'd rather do so with someone who disagrees with me, because that's a better way to learn, and I'm more interested in learning than in receiving comforting reinforcement of the beliefs and positions I already hold.

She's much better looking than the rest.

____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

I'd like to have a few beers with Franz, assuming that official age thing has been resolved in his favor. Of course, I should probably ask if he's a belligerent drunk. Don't want to end up either on the receiving end or having to take on half the bar to back him up.

Franz has never touched the stuff, so we don't know if he's a belligerent drunk. You also wouldn't want to find out.

OTOH, typically when I did drink there was usually a county wide alert for SWAT, FBT HRT was put on alert and a couple of times I heard Delta was raised to stage 2. That was usually for the guys I was hanging out with, couldn't have been me because I have absolutely no recollection of ever causing any trouble. Of course, I also have absolutely no recollection of how I generally ended up several counties and sometimes several states or countries from where I started.

We'd be pleased to hang out with you. Just ice water with a water straight up for a chaser thank you.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

And Franz? Any drinking incidents he may or may not "recall"? Any skeletons in the closet, waiting to be gathered by some other candidate's campaign for an oppo dump? Any same-day Las Vegas wedding-annulments? Any BUI (Barking Under the Influence)? And out-of-wedlock litters for which he's responsible?

before Franz was a puppy. Mrs908 made sure there are no litters, annulments, etc.

Skeletons? Heh. He IS a dog. They ARE bone. Ahhh, nope, no skeletons.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

There is an interesting follow up of 'what do you think so-and-so drinks?'. When Tony Blair was first Leader of the Labour Party, and very popular, most people guessed that he probably drank whatever it is that they themselves drank. I understand the same was true W (though, of course, he doesn't drink anything alcoholic), and was seen as one of the measures that put him ahead of Gore in the 'regular guy' stakes.

After Blair had been in power a few years most beer drinkers decided he was a white wine spritzer sort of chap.

Quentin Langley
Editor of http://www.quentinlangley.net

International Editor of

... I would drink with Darin H. Given that we are both conservatives and Denver Broncos fans I'm sure we could keep talking late into the night.

I'm a mixed drink kind of guy, so I'd prefer a screwdriver.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

6 weeks too late, but I only just read this post.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website