The anti-free speech aspects of federal campaign finance reform laws have been getting a lot of attention lately. As those laws come before the Supreme Court, their “progressive” advocates have been urging the Court to be “restrained” rather than “activist,” and uphold those laws.

There is a delicious irony here.

When “progressives” took over the Supreme Court in the twentieth century, they largely re-wrote the Constitution.  In series of extremely activist decisions, the Court downgraded the protection given to economic rights and property rights, but greatly increased the level of protection for free speech. Soon the Court was giving political speech — no matter how outrageous — the protection of “strict scrutiny.” This meant that any law restricting speech had to “be narrowly tailored to serve a compelling governmental purpose.” A compelling purpose meant one that was important to “progressives” — as opposed to, say, a purpose important to conservatives and libertarians. The requirement of “narrow tailoring” meant that the law was invalid if it did anything other than serve a purpose the “progressives” really liked.

These new rules gave “super-protection” to political speech of the most vulgar and marginal kind. They also also ripped up traditional state laws of libel and slander, largely depriving defamed persons of legal recourse for protecting their reputations.

Of course, these new rules had virtually nothing to do with the actual meaning of the Constitution’s Free Speech Clause as the Founders wrote it. Twentieth-century “progressive” judges essentially made up legal doctrine as they went along.

Then the “progressives” changed their minds. They decided they wanted to infringe free speech though Campaign Finance Laws. This put them in a quandary, because most of these laws clearly flunk the “strict scrutiny” test the “progressives” themselves had written into constitutional jurisprudence. In particular, campaign finance laws usually fail the requirement that laws restricting speech must be “narrowly tailored.”

Characteristically, “progressives” are now backpedaling on the importance of free expression. The most liberal justices on the Court have tried to fiddle with the rules they themselves created so as to allow campaign finance laws to survive.

The centrist (status quo) members of the court (including Chief Justice Roberts) thus far have applied the “progressive” precedents, and have voted to strike down all or parts of such laws. The two most traditional judges — Thomas and Scalia — have voted with the centrists.

What the Court really needs to do is to jettison this artificial structure of law and apply the Constitution as the Founders understood it. This probably would result in a holding that the Constitution doesn’t have the authority to regulate campaign speech in the first place, so the laws would be struck down before even getting to the First Amendment issue.

Finally: For the “progressives” to argue that judges should not be judicial activists really makes them look silly. Much modern constitutional law — including the law of free “expression” — is the product of their own judicial activism. It may be wrong for the Court to continue to apply those precedents. But it is certainly not “activist” to apply them, even if they happen to be inconsistent with the liberal crusade du jour.