Free speech sanity
Supreme Court retreats from a terrible law
Published June 26, 2007 at midnight
The U.S. Supreme Court on Monday brushed back a small part of the McCain-Feingold campaign-finance law banning certain kinds of political speech up to two months before a federal election.
In doing so, it began the task of reclaiming the First Amendment, so badly battered by that statute.
The court ruled in favor of Wisconsin Right to Life, which in the run-up to the 2004 Wisconsin primary wanted to run ads urging senators to end their filibuster against certain judges, and urging voters to let their senators know their views.
One of Wisconsin's senators was that same Russ Feingold, and he was running for re-election. So any broadcast advertising that mentioned his name - even in a context unrelated to the election - was banned.
If that sounds to you like an egregious violation of the First Amendment, it does to us as well. Political speech is at the core of the constitutional rights the amendment is meant to protect. But the Supreme Court, regrettably, didn't see it that way in 2003, when it upheld the part of McCain-Feingold that applied to ads such as these.
The court could have overturned that decision. Indeed, Justice Antonin Scalia, in a concurring opinion that was joined by Justices Anthony Kennedy and Clarence Thomas, argued that the court should do precisely that. However, Chief Justice John Roberts did not go so far in the majority opinion. But Roberts did reject the argument made by the Federal Election Commission that the right-to-life group had to demonstrate that section of the law was unconstitutional; he said instead that it is rather the government that has to prove that applying the law in this case "furthers a compelling governmental interest and is narrowly tailored to achieve that interest."
While we wish the decision had gone further - Roberts went out of his way to note that these cases did not affect other parts of McCain-Feingold that prohibit express advocacy by corporations for a candidate and limit contributions - he stated the principles clearly.
"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," he wrote. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."
Sen. John McCain, R-Ariz., called the ruling "regrettable," but crowed that it left in place the "central reform" of the law that carries his name, the limits on how and from whom campaign funds can be raised.
No, senator, what is truly regrettable is that President Bush did not veto this misguided legislation when Congress passed it in 2002. Even though the president believed the law was unconstitutional, he signed it, gambling that the Supreme Court would do for him what he lacked the political will to do for himself. He and the American people lost the gamble. The administration this time even sided with the FEC, arguing that the ads really were "electioneering communications" in disguise.
McCain-Feingold has done nothing to accomplish its stated purpose, that is to keep money out of politics. When the federal government spends $3 trillion a year, there is no way to "keep money out of politics"; too much is at stake. Money just finds other outlets, and is spent in ways for which no one is accountable. That's no reform at all.
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