The Daily Top Five

For December 21, 2006

1. Prof. Eugene Volokh has a great, and lengthy, piece on the issue of free speech, college campuses and the actions of a professor toward a student involved in a rally against illegal immigrations. Volokh dismantles the professor and his excuses quite well, while also making a valid point about the role of free speech, particularly on college campuses.

2. For campaign finance geeks and lovers of free speech, be sure to check out the decision from the District Court of the District of Columbia's decision in the Wisconsin Right to Life vs. FEC, a case that will, if upheld by the Supreme Court, carve out an exception to the McCain-Feingold law for true issue advertsing. Still working through the opinion, but it looks like a solid move in the direction of allowing political speech that McCain-Feingold limited.

3. More campaign finance stuff (I know, I am a geek about these things). I have long believed that McCain-Feingold's Millionaire's Amendment to be not only silly, but also unconstitutional. Well earlier this week, the FEC announced a decision in the case of former Illinois Senate candidate Dan Hynes, who was trying to retire a $400,000 campaign debt from the 2004 Illinois Senate primary, but because a former opponent had triggered the Millionaire's amendment, Hynes, after consulting with lawyers, continued to raise money to retire his debt under the increased spending limits available to him ($12,000 per person in this case). The FEC said he couldn't do it and has now fined him $76,500. As Paul Sherman at the Center for Competitive Politics writes:

Analysis of the statute reveals another twist: It applies only to "a candidate and a candidate's authorized committee." But if Hull's primary loss meant that he had "ceased to be a candidate" for purpose of the statute, then surely Mr. Hynes had ceased to be a candidate as well and was, therefore, not subject to the rule. Indeed, Hynes was ultimately dismissed from the case, but apparently not on these grounds; the General Counsel's report found reason to believe that Hynes himself had violated the law. Perhaps the General Counsel believed that interpreting the statute to apply to a former candidates' authorized campaign committee but not to the former candidate himself would verge on an absurd result. This strikes us as no more absurd, however, than interpreting "candidate" to include former candidates in once instance and exclude them in another, both within the same sentence.

These textual quirks and the bizarre outcome in this case shouldn't surprise anyone. They are the natural consequence of regulation unmoored from principle. Our concerns about "corruption" should be at their lowest when dealing with ex-candidates. It's hard enough for losing candidates to retire their debt without placing unnecessary obstacles in their way. If Hynes and his Committee did violate the letter of the Millionaire's Amendment, it is further proof of the absurdity of that law.

This is the silliness and absurdity of a campaign finance law more concerned with protecting incuments that preventing corruption of candidates and officeholders.

4. I am currently working through an analysis of the Educator Roundtable petition to repeal NCLB, but if the Roundtable wants to take on a cause that I think would be more worthy of their effort, they should seek a reform of the Title I funding formula. Joanne Jacobs points to a good study on the subject. Any formula that rewards richer states because they spend more on education than poorer states has failed to grasp the spirit of the law.

5. I know a lot of people refer to this time of year as the silly season for a number of reasons. But the press accounts regarding religion, public displays and such have revealed a rather absurd thinking about regligion in the public sphere. From an educational standpoint though, the public "fear" about the separation of chruch and state in the schools is leading people to blur the line between teaching religion on teh public dime (prohibited) and teaching about religtion on teh public dime (permitted). Secular education is proper for the public school system, but that doesn't mean that we should be teaching children to be ignorant of religion and its impact on history. Education Gadfly has more about the reaping of our folly.