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You have the right to remain silent

Many of my liberal friends still hold to the idea that George Bush (and/or John Ashcroft) is the big threat to civil liberties in the United States. Well, I'm not a blind defender of the Bush administration, but as any good libertarian can tell you, neither party has a monopoly on authoritarian tendencies. Case in point: two Clinton-appointed judges just decided that political candidates can be censored by the state. The U.S Court of Appeals for the Second Circuit just upheld, 2-1, a Vermont law that restricts spending by candidates for various state offices, with a sliding scale depending on the office in question.

So we have a court deciding that the first amendment does not protect political speech. Why? Because politicians are telling the court that they'll be corrupt if they're allowed to spend more money. This apparently is a reason to censor people, rather than, say, prosecuting everyone currently in the legislature. The Supreme Court held in its Buckley decision that contribution limits were acceptable means of limiting corruption, but that expenditure limits were not. The Second Circuit simply glosses over the distinction after noting it.

And if there's any doubt that this is totally unconstitutional, the decision's explanation of where the compelling state interest comes in includes:

1) encouraging public debates and other forms of meaningful constituent contact in place of the growing reliance on 30- second commercials and (2) increasing the ability of non-wealthy Vermonters to run for state office in Vermont.
Not only are they trying to dictate how much may be spent, but how it may be spent. The state has a compelling interest in seeing debates rather than 30-second spots? Why they don't just label this the "Make Sure Incumbents Get Re-elected By Ensuring That Challengers Can't Get Their Name Out" law, I'm not sure.

The first thought I had when I read the decision was Justice Brandeis's observation that "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well- meaning but without understanding." It turns out that I'm not original; Judge Winter, who filed a long dissent in this case, began his opinion with the same quote. The only encouraging thought I can take from this is that the dissent is so much clearer and more convincing than the cursory majority opinion, that the Second Circuit sitting en banc will be embarrassed into reversing it.


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This page contains a single entry from the blog posted on August 9, 2002 12:37 AM.

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