7/09/2005 08:32:00 AM|||Nathan Moore|||

The lunacy of "campaign finance reform" as pushed by John McCain, and rubber-stamped by President Bush, has produced some unfortunate fruit. In Washington, it has done precisely what we conservatives do not want to see happen - further empower the judiciary.

In a decision some critics said could threaten press rights, a Washington state judge ruled last week that two radio hosts’ on-air comments promoting an anti-gas-tax initiative should be considered in-kind campaign contributions.

Thurston County Superior Judge Christopher Wickham on July 1 ordered sponsors of Initiative 912 to report the value of comments by KVI Radio talk-show hosts John Carlson and Kirby Wilbur.

One question is obvious: Are you kidding??

Let's take Judge Wickham's cracked rationale to its ultimate conclusion. Every campaign, whether issue or candidate based, and whether local, state, or federal, must have an individual charged with monitoring the airwaves looking for favorable commentary on their campain to report it. Does this extend to callers? Probably. The potential for abuse here is rampant. Campaigns could actually plant in-kind contributions of this nature to penalize and sabotage the opposition. We would have to develop a "reasonable knowledge" test for culpability, and then have some sort of multiprong test of whether the speech actually rose to the level of a contribution.

In short, it's a gigantic mess.

“If commentary is equated with a commercial, does this mean that editorial endorsements that give out a campaign address and contact information is now a reportable in-kind donation?” Carlson asked, as reported by The Olympian. “Does it mean that a television commentary that vigorously opposes an initiative has to be reported? ... At what point does commentary become a commercial?”

Precisely. The obvious strawmen in this line of unconstitutional fire are bloggers, editorialists, television coverage, and, ultimately, neighbors talking to one another.

In law school, and painfully in practice, you learn a legal principle called "abuse of discretion". It is a principle that is controlling on many aspects of appealable issues, primarily in evidentiary and operational court issues. My evidence professor in law school called it the "judge on drugs" test. I think it's time Washington state took this metaphor a little further, and ordered random drug tests for the bench.

Forget the Ten Commandments - let's put the First Amendment in our courthouses.

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