How Did the First Amendment Fare on Election Day?

November 17, 2010 09:08

Probably the biggest news was that Russ Feingold, one of the authors of the largest legislative assaults on the First Amendment since the Alien and Sedition Acts, lost his re-election bid.

By Bill Maurer

Now that most of the dust has settled (although in some places it is still plenty dusty), we can assess how well the First Amendment fared in this last election.

castingballotProbably the biggest news was that Russ Feingold, one of the authors of the largest legislative assaults on the First Amendment since the Alien and Sedition Acts, lost his re-election bid. (His partner in the eponymous McCain-Feingold bill, John McCain, on the other hand, easily won re-election.) Feingold was recently arguing for further restrictions on the First Amendment, urging his colleagues—in a stunning display of disregard for the Constitution and separation of powers—to further restrict free speech regardless of any “fear of the [Supreme] Court” and whether it might strike down their work as unconstitutional. This single-mindedness persisted despite the fact that McCain-Feingold was such a colossal failure in even what it was intended to do. For those that believe that the First Amendment actually means what it says, it was good news indeed that a leading voice of the “more-always-needs-to-be-done” school of campaign finance “reform” will no longer be leading further attacks on our fundamental constitutional rights (at least for the moment).

Free speech advocates could also rejoice that Rep. Alan Grayson, the Florida Congressman who called Citizens United “the worst Supreme Court decision since the Dred Scott case,” was involuntarily retired. Perhaps Floridians were tired of being represented by a politician who was so intemperate, insensitive, and ideologically blinkered that he could not tell the difference between a decision upholding the plain language of the First Amendment and a decision returning a human being to brutal subjugation and condemning countless African Americans to the horrors of slavery.

Turning to taxpayer-financed elections, majorities voted against ballot measures to preserve two “clean elections” systems. In Portland, the Rose City’s scandal-rocked system of taxpayer-financing for politicians was narrowly rejected by the voters. Portland is one of the most progressive cities in America and its voters like to say “yes” to government spending. When you add California voters’ refusal to pass two public financing initiatives in recent years, one of which was overwhelmingly rejected by a 3-to-1 margin, these results demonstrate that even in very left-leaning jurisdictions, taxpayer-financed elections are simply not that popular.

In Florida, while a solid majority voted to scrap Florida’s system of public financing for certain state races, it was not enough to meet the 60 percent requirement needed to amend the state constitution. Regardless, the “matching” or “rescue” funds provision of the system had already been enjoined by the Eleventh Circuit.

Finally, no discussion of the intersection of free speech and electoral politics would be complete without mentioning Congressman Peter DeFazio (D-Ore). Angered that people were spending money to defeat him, he became nationally known for yelling through a mail slot at people who had the gall to exercise their First Amendment rights. DeFazio had also recently begun talking about how it might be a good idea for Congress to impeach Chief Justice Roberts for upholding First Amendment rights. DeFazio won re-election again. However, perhaps this is not a bad result for the First Amendment. DeFazio’s efforts and his reaction to being criticized demonstrates that, while much of the rhetoric from pro-regulation politicians focuses on battling corruption and cleaning up the system, the restrictions they seek are often just a means for them to silence those who oppose them—an important lesson only someone like DeFazio can really teach.

Bill Maurer is the Executive Director of Institute for Justice – Washington State Chapter

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