FECkless

Various and vaguely dissatisfied buzzing at Democracy Project, Volokh, and Wizbang over the FEC's proposed rules change (doc at Democracy Project) that purports to legalize free speech. This gets my hardcore libertarianism up in arms. Who are they to pass a rule that allows me to keep my First Amendment rights? It's a truism, but it's true- if they can make a rule that allows it, they can make a rule that bans it.

I'm with Patterico on this one: there's no way that Congress, much less some fuddy-duddy regulatory agency can constitutionally restrict American's First Amendment rights. I'm going to ignore whatever rules they put in place. When it comes to something as basic as free speech, it's the government's job to stay out of our way. It's not our responsibility to toe the regulatory line.

Here's a tip for the FEC. Maybe McCain and Feingold will listen up too. If it's unConstitutional for Congress to pass a law abridging freedom of speech, it's equally unConstitutional to arbitrarily convert speech to dollars and then regulate that. What a loophole!

See, some people started saying that the problem with politics is that there's too much money involved. So let's regulate the money but allow speech. Oh fine and dandy, said all the right people. Then someone else realized that, hey, if you're going to regulate the money, you've got to regulate in-kind contributions to campaigns too. They're practically the same as money- readily quantifable, convertable to cash. Great! Now we're really being fair. Then some idiot thought, but wait- speech can be an in-kind contribution. The right words from the right people can be worth a million. That's got to be regulated too. So we end up in this absurd situation where speech is free but its cash equivalent is not. They'll just regulate the one. If something should happen to the other, well, you know. Got to regulate those cash contributions. The Supreme Court said it was alright.

The Supremes will have to realize, sooner or later, that converting speech to dollars and regulating the dollars simply won't do. And then they'll have to realize that all the necessary accessories of speech- things like printing presses, telegraph lines, soap boxes, cell phones, and webservers are also untouchable, as is their purchase, lease, or gifting. Right around that time it will also cease to matter as national borders blur beyond the possiblility of regulating speech. I think that's due around June.

Of course, the deeper irony of all this is that when the First Amendment was adopted, the Framers saw it mostly in terms of political speech, and not at all in terms of porno movies, exotic dancing, and religio-scatological art. Now that's flipped. Nearly nothing is objectively obscene and so nearly everything is protected by the First Amendment, except for political speech, which is tightly regulated. Frickin do-gooders.