In '94 (and '76) incumbents will have lost en masse to opponents because of the nationally publicised woes of their parties, not because the opponents of incumbents locally were particulary adept at campaigning on a shoe-string. In these election years local campaigning was irrelevant. In ordinary circumstances things are still much, much easier for the well-funded, incumbents or recognisable names.

and the more recent Democrat takeover was all on issues? Comon'...

Posted by Bithead | June 27, 2008 | 12:09 pm | Permalink

In 2006, like 1994 and like 1976, the incumbent party was politically unpopular for reasons more national than local, and the fact that less-well funded or less-well known local Democratic candidates beat incumbent Republicans didn't prove that incumbency and money aren't ordinarily advantageous, just that in *some* years the wind is behind a particular party and the local candidate can get away with having less money and less campaigning on the ground, or with running less commercials - but this is the exception rather than the rule.

Ok, but isn't public policy more properly under the purview of the legislative and executive branches?

Indeed. Then again, if money equals political speech in this process, I'd argue that most of McCain-Feingold, not just a handful of peripheral provisions, are plainly unconstitutional. That, post-1803, is the Court's purview.

While I firmly agree with the outcome and the reasoning of the majority, Stevens actually has the better public policy argument.

Ok, but isn't public policy more properly under the purview of the legislative and executive branches?

In '94 (and '76) incumbents will have lost en masse to opponents because of the nationally publicised woes of their parties, not because the opponents of incumbents locally were particulary adept at campaigning on a shoe-string. In these election years local campaigning was irrelevant. In ordinary circumstances things are still much, much easier for the well-funded, incumbents or recognisable names.

and the more recent Democrat takeover was all on issues? Comon'...

Effectively, by the way, that's a recipe for ensuring that incumbents and others with powerful name recognition (celebrities, mostly) win without a fight.

Can we point to situations where incumbants have been tossed out without such 'equality'? I daresay the 94 mid-terms answer that one. That being the case, perhaps you mis-identify the issue.
Posted by Bithead | June 27, 2008 | 11:16 am | Permalink

In '94 (and '76) incumbents will have lost en masse to opponents because of the nationally publicised woes of their parties, not because the opponents of incumbents locally were particulary adept at campaigning on a shoe-string. In these election years local campaigning was irrelevant. In ordinary circumstances things are still much, much easier for the well-funded, incumbents or recognisable names.

Effectively, by the way, that's a recipe for ensuring that incumbents and others with powerful name recognition (celebrities, mostly) win without a fight.

Can we point to situations where incumbants have been tossed out without such 'equality'? I daresay the 94 mid-terms answer that one. That being the case, perhaps you mis-identify the issue.

the future of McCain Feingold may be grim.

As it should be.

If McCain gets to appoint a Justice, the future of McCain Feingold may be grim.

Money does not purchase speech, money buys an audience. The constitution protects speech content, it does not guarantee an audience. What the money = speech doctrine does is create, out of whole cloth, the right to an audience for your speech.

Well...no. That's like saying you've got a right to voice your opinions about government if you do it inside your house but that you don't have any right to do so in the public square. Clearly, that's not the case, even though time, place, and manner restrictions can apply.

If you can't spend money to air commercials, you are effectively silenced in terms of national discourse. Otherwise, you're relying on the mercies of the broadcasters for free time.

Effectively, by the way, that's a recipe for ensuring that incumbents and others with powerful name recognition (celebrities, mostly) win without a fight.

Be that as it may, I'm going to keep this one in my permalink list for when arguments about the 'fairness doctrine' come up, as I suspect they will. Seems to me the point surrounding the lack of a guranteed audience in the first amendment will play heavily there.

If McCain-Feingold (and, for different reasons, SCOTUS) are going to equate amount of time spent present in the media with amount of free speech exercised, maybe having TV stations set an advertising quota for each candidate or something something similar would make more sense than complex campaign finance regulation re-jigging. Also, guaranteeing non-self financed candidates a certain amount of media space may to some extent dull the need to seek funding from lobbies or corporations.

The Court here continues a long line of opinions which proclaim that, in political campaigns, the ability to spend money to buy television advertising is tantamount to speech.

which is complete and utter nonsense. Money does not purchase speech, money buys an audience. The constitution protects speech content, it does not guarantee an audience. What the money = speech doctrine does is create, out of whole cloth, the right to an audience for your speech. If the supreme court is saying that they have excavated a new right under the 9th they should say so.

What this boils down to is that while the first amendment does uphold the right of free speech, it does not gurantee an an audience.