SCOTUS, the FEC, and Blogs

I like John McCain. Spending 5 1/2 years in "that Hanoi pit of hell" for his country earns a guy a lot of creds. The passage from the Nightingale's Song, describing how his dad, who was CINCPAC at the time, spent Christmas Day with the Marines along the DMZ just so he could be closer to his son, brings tears to my eyes even as I type this.

If I could ask the Senator just one question, it would be, "How can someone who has sacrificed and suffered so much for his country turn around and sponsor a bill that destroys the very freedoms he fought so hard to protect?"

In McConnell v. FEC, the SCOTUS upheld McCain-Feingold's ban on soft money and political speech.

The campaign finance law bans so-called soft money, the unlimited and unregulated contributions to national political parties. It also prohibits advocacy advertisements 60 days before an election -- ads criticizing or supporting a candidate's stand on an issue. The law also imposes contribution limits and donor disclosure requirements.

How that squares with "Congress shall make no law... abridging the freedom of speech, or of the press" is beyond me.

The blogosphere is abuzz with a recent development, where the FEC is seriously considering applying the law to blogs. Here's the article that started it all. Michelle Malkin, Captain's Quarters, and others have been all over it.

Here we find the great conumdrum for liberals who advocate a "living Constitution" and an activist Supreme Court: if the court has the power to grant Constitutional rights (e.g. finding a Constitutional right to abortion in the "emanating penumbras" of Roe v. Wade), it also has the power to take them away. The fact is, they do have that power, and there is little we can do about it without changing the fundamental order of our government, as Deacon of Powerline notes in this post. The only counter to America being ruled by a judicial oligarchy is to appoint strict constructionists to the appeals courts and the SCOTUS. This very issue is why strict constructionist jurists are the only ones appropriate.

This fundamentally drives Justice Antonin Scalia's judicial philosophy. He understands the role of the Court in our system of government, and in speeches frequently asks the question, "If you don't use strict constructionism as your standard, what do you use?" The political views of nine lawyers out of touch with the people? They are a poor substitute for the will of the people as expressed through our democratic political process. It is not their place to decide matters of policy. His passionate dedication to this principle is what makes him a great justice, and a model for future appointees. It is why he wrote the dissent for McConnell v. FEC.

I was lucky enough to hear Justice Scalia give a speech at the University of Pennsylvania Law School when I was a senior, back in 1993 or 1994, where he expressed these sentiments eloquently. Afterwards there was a reception, with free beer and snacks (hors d'ouevres, but I'm not French), where he circulated among the students and faculty. He was accosted by people asking him question after question about Roe v. Wade and other cases where the conventional legal mindset ran smack dab into the brick wall of his unassailable judicial principles. It was getting ridiculous. Law professors would ask him a question and react with a smug, superior smile at his answer, as if amused by how simplistic his thought processes were. I wanted to use this once-in-a-lifetime opportunity to ask him some profound question, but didn't have the heart. Two-and-a-half sheets to the wind, I said at a pause, "Sir, I'd just like to thank you for the opportunity for some free beer." He shook my hand and said, without missing a beat, "Party on, dude." I went in search of the bree.