A Missed Opportunity
Recent (seems like ancient) history:
2002 - After years of blocking McCain-Feingold "campaign finance reform" (i.e. political speech restriction), Mitch McConnell (R-KY), the current Senate Minority Leader, relents and allows it to pass. President Bush, who had expressly promised during the 2000 campaign to veto M-F if it ever arrived on his Oval Office desk, crosses everybody up and signs the bloody thing.
2003 - Senator McConnell, having allowed M-F to pass (doubtless anticipating that Bush would keep his word and veto it), sues to have "campaign finance reform" declared unconstitutional. The Rehnquist SCOTUS crosses everybody up who got crossed up by Bush's signature on M-F and upholds it instead.
NOW - The Roberts SCOTUS rules correctly in Federal Election Commission v. Wisconsin Right To Life, Inc. - but only as far as it absolutely had to:
"Contact" and "urge". That's all the ad asked Wisconsin viewers to do. It was issue advocacy, not electioneering. A distinction so garishly obvious that Olympus - still only by a one-vote margin - was willing to recognize that much.
But, ominously, it was the two Bush43 appointees that were not willing to see the forest beyond the trees:
So wrote the Chief. Justice Alito concurred:
Well, at the very least, he didn't argue.
As well he should have. What Roberts did was cite the result of Senator McConnell's suit as precendent - or, one might counter, an excuse - to not do what the First Amendment clearly calls for and overturn McCain-Feingold altogether as the unconstitutional abomination it is. A move that Justices Scalia, Thomas, and surprisingly, Kennedy, were all willing to make.
'Tis a pity that cases like this can't unfold in a vacuum. The political context in which this ruling was handed down finds free speech under the most withering assault in the nation's history - a bleak situation for liberty that tossing out "campaign finance reform" altogether would have gone a long way to mitigate.
Brother Hinderaker sums it all up:
If that's the case - and it is - then given which party controls the Senate, and which party will control the White House after 2008, we may as well pronounce the First Amendment dead.
2002 - After years of blocking McCain-Feingold "campaign finance reform" (i.e. political speech restriction), Mitch McConnell (R-KY), the current Senate Minority Leader, relents and allows it to pass. President Bush, who had expressly promised during the 2000 campaign to veto M-F if it ever arrived on his Oval Office desk, crosses everybody up and signs the bloody thing.
2003 - Senator McConnell, having allowed M-F to pass (doubtless anticipating that Bush would keep his word and veto it), sues to have "campaign finance reform" declared unconstitutional. The Rehnquist SCOTUS crosses everybody up who got crossed up by Bush's signature on M-F and upholds it instead.
NOW - The Roberts SCOTUS rules correctly in Federal Election Commission v. Wisconsin Right To Life, Inc. - but only as far as it absolutely had to:
The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.
The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.
The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.
"Contact" and "urge". That's all the ad asked Wisconsin viewers to do. It was issue advocacy, not electioneering. A distinction so garishly obvious that Olympus - still only by a one-vote margin - was willing to recognize that much.
But, ominously, it was the two Bush43 appointees that were not willing to see the forest beyond the trees:
These cases are about political speech. The importance of the cases to speech and debate on public policy issues is reflected in the number of diverse organizations that have joined in supporting WRTL before this Court....
Yet, as is often the case in this Court's First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: "Congress shall make no law...abridging the freedom of speech." The Framers' actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech - between what is protected and what the Government may ban - it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that etermination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban - the issue we do have to decide - we give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law...abridging the freedom of speech" demands at least that. [emphases added]
So wrote the Chief. Justice Alito concurred:
If it turns out that the implementation of the as-applied standard set out in the principal opionion [by Chief Justice Roberts] impermissibly chills political speech...we will presumably be asked in a future case to reconsider the holding in [McConnell] that Sec. 203 is facially constitutional.
Well, at the very least, he didn't argue.
As well he should have. What Roberts did was cite the result of Senator McConnell's suit as precendent - or, one might counter, an excuse - to not do what the First Amendment clearly calls for and overturn McCain-Feingold altogether as the unconstitutional abomination it is. A move that Justices Scalia, Thomas, and surprisingly, Kennedy, were all willing to make.
'Tis a pity that cases like this can't unfold in a vacuum. The political context in which this ruling was handed down finds free speech under the most withering assault in the nation's history - a bleak situation for liberty that tossing out "campaign finance reform" altogether would have gone a long way to mitigate.
Brother Hinderaker sums it all up:
The next few Supreme Court appointments may be crucial to ensuring that the First Amendment does not become the exclusive preserve of pornographers, nude ancers, and "mainstream" news outlets like the New York Times and the Washington Post.
If that's the case - and it is - then given which party controls the Senate, and which party will control the White House after 2008, we may as well pronounce the First Amendment dead.
posted by JASmius at 8:55 PM
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