Capital University law prof, former FEC Commissioner, and Romney supporter Brad Smith has this to say about why so few conservative law professors have jumped on the McCain bandwagon:
I think that conservative law professors, who as I say, probably care more about the issue of judges and are on average in a better position to consider the candidates on this particular issue than are most other conservative activists, don't like what they see in McCain. Some of it is the problem of McCain-Feingold. McCain is likely to make support for McCain-Feingold - an issue he has said is "of transcendent importance" to him - a litmus test for judges. It is very hard, however, to find judicial candidates who think McCain-Feingold is constitutional yet who are also are anti-Roe v. Wade and generally respectful of the Constitution. For anyone with a coherent judicial philosophy of federalism and limited government, the two just don't go together. When McCain says he wants to appoint justices like Thomas and Scalia, we must consider that Thomas and Scalia would overrule all of McCain-Feingold, indeed all pre-existing campaign finance law except perhaps some disclosure. It is almost impossible to believe that Senator McCain would appoint Thomas or Scalia to the bench, let alone the Supreme Court.
Of course, there was a time when conservatives were significantly less sympathetic to a broad interpretation of the the First Amendment than were liberals. Perhaps President McCain will regress conservatives to the historical mean.
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New York Times, October 6, 1987.
Los Angeles Times, July 25, 1990.
Not being a law professor, I'm at a loss to recall offhand when conservatives were hostile to an interpretation of the First Amendment that included political speech. I think its somewhat disingenuous to conflate, say, the right to view pornography in the public areas of the public library, with the right to criticize the bottom dwelling incumbents in Washington. Not that I'm advocating either restriction, but there is a difference.
It's a new one for me that one needed a broad interpretation of the first amendment to feel that McCain-Feingold was a violaton of free speech.
And as for McCain-Feingold, if money is speech (the way Scalia and Thomas wold hold) then we should all be free to wire funds to Hezbollah, orAl Qaeda for that matter. Jose Padilla's conviction starts to look pretty shaky (remember, it was "conspiracy," the bombing plot charge fell through).
It's just not simple enough for one side to claim exclusive fidelity to the First Amendment or the Constitution.
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Conservative law professors? What's that, maybe 8 out of 800 law professors?
I think conservative law profs probably pick and choose their battles given the hostility against them in the Academy.
I've always been a bit mystified as to why others like me (non-lawyers) are so insistent that McCain-Feingold is a "violation of free speech" or how it means McCain disrespects the First Amendment. I've only heard demagoguery that sounds as though it's repeated from mailings sent by the groups who are directly affected by it.
So yeah, MoveOn.org and the Swift Boat Veterans are the bogeymen of the right and left, and both arose due to CFR. I suspect that's another huge reason for people's consternation. However, there's nothing stopping people from supporting 527s, so I fail to see how their right to political expression is suppressed. Could the law be better? Of course. And for all the shrieking about McCain-Feingold, you'd think there'd be popular support for reforming it or making a solid legal challenge to it.
Honestly, I don't feel like MY rights have been violated, and wasn't CFR instituted in order to get the political process closer to how it was intended--one man, one vote?
It seems the question is how to reasonably regulate one Constitutional interest to preserve the Constitutional gov't itself.
I'm not an academic, but I think too many politicians like Romney will talk and study and delay to avoid any political risk they can leave to future generations. The debt grows &immigration remains broken. Perhaps DC deadlock and divide is for the best, but gov't remains bloated. Give me a McCain who will actually initiate some solutions to needed problems. Yes, the solutions are flawed, but the critics can help by actually pitching in to the process.
"If giving money to political campaigns is not speech, then giving money to Hizballah is not terrorism, and giving money to a hit man is not murder."
If it is not speech it is still an action which can be regulated (subject to enumerated powers) but if it is speech, to that extent it may not be regulated (subject to limits on incitement, etc)
As for the rest of it, I am entirely unable to see your point, but I am pretty sure no one who takes the time to make an argument about what the First Amendment means is "lying," yourself included.
Personally, I'm no fan of McCain-Feingold, but I think most people at the time saw this as a temporary solution. By no means a perfect fix, but an attempt at getting a handle on the situation.
I recognize that "handle" could be taken to mean regulation, a nasty word on a libertarian blog, but I for one think corporate influence that isn't transparent should be "handled". Complete transparency isn't available, so some regulation is necessary. One argument may be that 527's allow for corporate speech, but require a degree of transparency subject to public condemnation.
Furthermore, the opinion that McCain would use CFR as a litmus test is an assumption. Might it be that, being the principled candidate he appears to be, he would hold other principles as higher in value?
a Multiculturalist. Today's NRO piece by Mark Krikorian is devastating.
http://tinyurl.com/yullcu
I do not understand how anyone, liberal or conservative, can oppose English immersion for teaching the often US-born children of immigrants.
Has he taken a position on whether Griswold v. Connecticut and/or Eisenstadt v. Baird were also wrongly decided and the question of criminalizing use or distribution of contraceptive devices should be returned to the states? After all, the specific language, "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child", Eisenstadt, 405 U.S. at 453, (italics in original) predates Roe.