Fanning the Flames: The Freedom Project Blog


Tie Goes to the Speaker

By Shawn Healy
In yet another 5-4 decision breaking along ideological lines, the new conservative majority on the Roberts Court carried the day and ruled in favor of Wisconsin Right to Life, Inc., and against the Federal Election Commission and former bill sponsor of bi-partisan campaign finance reform legislation Senator John McCain.

The Court has been busy in recent years considering the overall constitutionality of this legislation in 2003, upholding it on 1st Amendment grounds as Senator Mitch McConnell issued a facial challenge. The key issue here is whether or not restricting so-called issue ads run by corporations or labor unions that mention individual candidates during primary and general election campaigns violate political speech rights. On its face, the Court said no, but it left the door ajar last year in allowing as applied challenges. This means the law itself may not be unconstitutional, but it could cross the line when applied in certain instances.

Five Justices determined that an ad run by Wisconsin Right to Life, a nonprofit corporation, was unduly punished by the FEC for a commercial that urged the Senate to provide President Bush's judicial nominees with an up or down vote. It urged Wisconsin citizens to contact their two Senators, Herb Kohl and Russ Feingold, and tell them to stop dragging their feet. Feingold, a co-sponsor of the aforementioned campaign finance reform legislation, was in the midst of running for reelection, and the ad appeared within 30 days of a primary. McCain-Feingold restricted such ads within 30 days of the primary and 6o days of the general election.

Justice Roberts spoke for the majority, "drawing (a) line," for the "First Amendment requires us to err on the side of protecting political speech rather than suppressing it." In this case, the former won out, for "where the First Amendment is implicated, the tie goes to the speaker, not the censor."

The outcome is again complicated by concurring opinions. Justice Alito seeks to bridge Roberts' opinion with that of Scalia, as the latter, joined by Thomas and Kennedy, fear that attempting to draw the line in terms of whether or not an issue ad run during a campaign is constitutional is nothing more than an exercise in futility. This triumvirate would strike down this section of the law on facial grounds, but Alito argues this is unnecessary.

The liberal bloc, led in this case by Justice Souter (joined by Stevens, Breyer, and Ginsberg), argues that the majority effectively overturned the Court's 2003 decision. This is a grave error according to Souter, because of the proliferation of money drowning modern campaigns, the recipient cynicism shared by the electorate, and a body of law over the course of the past century seeking to uphold the integrity of the political process through regulating campaign fundraising and expenditures.

The impact of this decision is likely to spur additional as applied challenges and also to encourage other issue groups to test the proverbial waters with the most expensive campaign in political history lurking in 2008. The ad run by Wisconsin Right to Life was probably not meant to directly affect Senator Feingold's prospects for reelection, but there will be others that border on advocacy for or against a candidate, and the lower courts will be left to parse the meaning of last week's decision.

This brings my analysis of the 2006-2007 Supreme Court to a conclusion, but I encourage you to join us for our annual Supreme Court Review at the Freedom Museum on July 12, 2007, from 6-7:30pm. Join Professor Geoffrey Stone, Richard Epstein, and Donald Downs to discuss the five First Amendment cases covered here in more detail. Admission is free. Call 312.222.7871 to RSVP.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at