By Stephen Z. Nemo: In the name of preserving the integrity of American politics from the seamy influence of well-heeled corruptors, Congress passed the McCain-Feingold Campaign Reform Act of 2002. A bipartisan consensus in Congress believed it had the power to secure the positions of incumbent politicians by limiting the free speech of political opponents capable of putting their money where their mouths are. When in 2008 the Federal Election Commission (under McCain-Feingold) blocked a pay-per-view telecast of a conservative documentary critical of then Democratic presidential candidate Hillary Clinton, and sought criminal prosecution of the film’s producer (Citizens United), the United States Supreme Court took up what they saw to be a free speech case. In the high court’s ruling in Citizens United vs. Federal Election Commission, Justice Anthony Kennedy said political groups burdened with the “heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak.
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