Quin, you seem to focus on the soft money ban in evaluating BCRA’s constitutionality. The ban on issue ads near the election is still part of its regime, and it seems perfectly legitimate to argue that, as a whole, BCRA is speech-stifling, and incumbent-protecting.
Your sunshine theory is interesting, but implausible. If sunshine were the driving force behind the third-party issue ads ban, then donor disclosure would suffice. Let me know what Sen. McCain thinks about replacing the issue ad ban with donor disclosure.
These folks take seriously the First Amendment’s prohibition on Congress making a law that abridges free speech, and object to the idea that third-party issue ads are somehow akin to yelling “fire” in a crowded theater (as a harm meriting the abridgement of free speech). Dismissing these free-speech arguments as frivolous, or even as unworthy of a spirited discussion, will neither allay their concerns about the future of the First Amendment nor help convince them to endorse candidates who supported campaign finance reform.
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