15
for EMILY’s List offered this succinct critique of the court’s
holding:
The Court:
Can you deal with [FEC’s counsel’s]
response on [Cal-Med]?
EMILY’s List: Yes. I mean, Cal[-]Med is
mysteriously produced here for the
FEC’s position. Cal[-]Med didn’t
raise any of the issues in this case.
Cal[-]Med was a simple question of
whether a committee that was
making contributions to federal
candidates had to observe a limit on
contributions made to that federal
program. That set a law now, that’s
certainly what EMILY’s List does. I
don’t think it bears at all on this
invasion of our state and local
programs through the promulgation
of these excessive federal regulatory
schemes.
Tr. of Oral Arg. at 32–33. How true.
But even if it were judicially proper for me to do so, and
even if the issues were briefed, I doubt I could join the court’s
opinion in full. This is not because I dislike its outcome.
Indeed, I agree with what seems to be the unstated premise: if
the Supreme Court’s cases made any sense, the First
Amendment would protect much more than pornography,
profanity, and pyrotechnics. See United States v. Playboy
Entm’t Group, Inc., 529 U.S. 803 (2000); Cohen v.
California, 403 U.S. 15 (1971); Texas v. Johnson, 491 U.S.
397 (1989). The amendment’s “purpose,” after all, is “to