Tie Goes to the Speaker
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.