This morning, the Supreme Court issued its opinion in Federal Election Comm’n v. Wisconsin Right to Life, Inc., a case we wrote about here and here. The opinion can be accessed here. On a five-to-four vote, the Court affirmed the District Court's conclusion that Section 203 of McCain-Feingold would be unconstitutional if applied to prohibit the issue ads in question that were run by Wisconsin Right to Life.

The history of this decision can be summarized as follows: Section 203 makes it unlawful for any corporation (i.e, any entity other than a person) to use its "general treasury funds" to pay for any broadcast that refers to a candidate for public office and is aired in the jurisdiction where he or she is running, within 30 days of a primary election or 60 days of a general election.

In McConnell v. Federal Election Commission, decided in 2003, the Court held that Section 203 is not unconstitutional, so long as it is applied only to ads that "expressly advocate" the election or defeat of a particular candidate, or are the "functional equivalent" of such express advocacy. McConnell left open the possibility that Section 203 could be found unconstitutional as applied to particular ads, and did not define functional equivalency.

In Wisconsin Right to Life, five justices held that it would be unconstitutional for Congress to try to ban (as described above) this ad:

On television, a man prepares for work as he reads the paper, shines shoes and pays bills. The voice of a narrator chimes in to explain.

"There are a lot of judicial nominees out there who can’t go to work...because a group of U.S. Senators is filibustering – blocking qualified nominees from a simple ‘yes’ or ‘no’ vote.”

“Contact Senators Feingold and Kohl and tell them to oppose the filibuster,” the narrator says.

Chief Justice Roberts wrote for the majority, joined by Justice Alito. Roberts said that it was not necessary to hold that McConnell was wrongly decided, since Wisconsin Right to Life won the case on an "as applied" basis. Alito held out the possibility that McConnell may be revisited at a later date:

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.

Three justices, Scalia, Kennedy and Thomas, believe that Section 203 is unconstitutional on its face, and McConnell should therefore be overturned. They consequently joined in the result. In fact, the definition of "functional equivalence" established by the Roberts/Alito opinion is so narrow that it is hard to see how Section 203 will ever be constitutionally applied to any issue ad. The four dissenters, who comprise the Court's liberal wing, wrote that McConnell has effectively been overruled, and I think they're probably right.

Of particular interest, I think, are the words with which Justice Roberts concluded his majority opinion:

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 determination 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.

I think it demands quite a bit more, and I suspect that Roberts thinks so, too.

Currently, free speech is under attack as, perhaps, never before in our history. McCain-Feingold has been chipped away at, but persists. Worse, over the next year, we are likely to see an effort by the Democrats to put talk radio out of business. The next few Supreme Court appointments may be crucial to ensuring that the First Amendment does not become the exclusive preserve of pornographers, nude dancers, and "mainstream" news outlets like the New York Times and the Washington Post.

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Posted by John at 11:17 AM  |    |