Campaign Finance Regulation and Free Speech

So I was going to attempt to weed through the recent Supreme Court decision regarding the validity of certain provisions of the McCain-Feingold campaign finance reform law, but that just sounded like more homework. I got through the gist of it, but that should be sufficient for the purposes of this discussion.

Here's a quick summary of the law that's most disputed:

-Whether it's okay to regulate "soft money" contributions. Donations made to federal candidates are regulated and must be reported. Donations made to state parties wasn't previous to McCain-Feingold. State parties would then take that money and campaign for federal candidates. Now that's not okay.

-Issue advocacy: Here's the sticky one. So, if a campaign advertisement is clearly a campaign, it'll say things like "Vote for Hillary" or "Don't vote for Obama." That's fine. It's regulated, it's disclosed, it's capped, etc. Sometimes, though, it's sticky. It'll say things like "Bush voted for X," or "Kerry said this." It'll have sinister motifs or patriotic, upbeat motifs as the case may be, but that's it. Typically it can and does occur outside of the control or direction of the candidate. If you're a conspiracy theorist kind of guy, you probably don't acknowledge that, but it's at least a concern behind the legislation.

You can see where the Issue Advocacy situation can create some free speech problems. Mind you, most free speech arguments are by purists one way or the other. So, there's little or no argument about what a reasonable abridgment of absolute free speech might be. You hear things like, "I should be able to say whatever I want, whenever I want, under whatever circumstances, regardless of effect on others or other concerns that may or may not be legitimate." This becomes a particularly vehement argument as political speech like campaigning is one of the most protected kinds of speech under the law.

So, you've got two parallel lines of argument happening while trying to make and interpret a law: 1) Is political speech subject to any kind of regulation in the abstract? 2) If yes, under what circumstances, what's reasonable, etc.?

My answer to number 1 is yes, of course. Recognizing the inherent danger of regulating free political speech, we're not talking about incumbents restricting the opposition's ability to campaign, nor are we talking about repressing a disgruntled populace seeking to speak out against the government. We're talking about existing Congressmen seeking to in some way level the playing field across party lines to ensure that campaign speech and spending is controlled and monitored. At the very least, we'll never have to wonder, as a matter of public record, who bought whose election.

As for 2, I'm not sure. This is a brutal question. This is a good instance, though, of how people tend to run away with fears of judicial lawmaking. The recent case's decision basically says that certain key aspects of the law aren't constitutional. That's fine. Really, all that means is that when there's a dispute, the language of the law is inadequate to give courts the means to enforce it without raising important Constitutional concerns. That doesn't mean that the court "made" law. It means that the court said, "This law doesn't give us enough guidance as to how to apply it without violating the Constitution. Feel free to come up with something better."

Check out a summary of McCain-Feingold here and let's hear what you think.