Wearing The 1st Amendment

The U.S. Supreme Court will hear oral arguments this week in Wisconsin Right to Life's challenge of the federal McCain-Feingold campaign reform law. The nation's high court decided back in January to review the case. At issue is whether the law's disclosure requirements and restrictions on campaign money apply to special interest groups when they sponsor so-called "issue ads" identifying a candidate for federal office within 60 days of an election.

Interest group-sponsored issue ads are a sham, a thinly veiled attempt to evade legal and constitutional limits on campaign contributions. They pretend to discuss issues but unmistakably aim to elect or defeat candidates. Before the McCain-Feingold law put an end to this phony game on the national level, most of the money for issue ads in federal races came from corporate and labor union treasuries, as is still the case at the state level. Yet corporations and unions have been banned by law from contributing money in connection with federal elections since 1907 and 1947, respectively, and past Supreme Court rulings upheld these bans.

Expect to hear lots of high-minded rhetoric about free speech Wednesday as opponents of McCain-Feingold wrap themselves in the First Amendment to defend their practice of keeping the public in the dark about who is paying for their electioneering in order to sidestep the federal ban on corporate and union donations.

For all the talk of free speech, this legal debate is really about the boundaries of paid speech – namely whether monied interest groups should be able to use their vast treasuries to monopolize political debate and drown out the voices of ordinary citizens. Another critical question before the court is whether interest groups should be free to do their talking under a cloak of secrecy.

Finally, underneath the arcane legal arguments looms the core philosophical question of ownership. The U.S. Supreme Court at one time embraced the repugnant notion that people can be property, setting the stage for the Civil War that commenced less than four years later. An infamous footnote to a high court ruling in a late-19th Century case advanced the similarly ridiculous proposition that property can be a person. That set the stage for citizen revolts like those led by Fighting Bob La Follette in Wisconsin around the turn of the century that ultimately resulted in the banning of corporate and union treasury donations nationally and here in our state.

Wisconsin Right to Life's challenge to McCain-Feingold raises anew the question of corporate ownership of democracy. Whether the Supreme Court will answer this question – or even think about it – is another matter.