FEC v. Wisconsin Right to Life

First off, I want to encourage our readers to read the actual opinion. If you want to get a good idea about the arguments involved in the campaign finance reform issue, the majority opinion, concurrences, and dissent all provide a good representation of the different sides of the argument.

Here’s a little about the case. It is a follow-up case to McConnell v. FEC. McConnell decided that McCain-Feingold was valid just from a reading of the language, but left open the question of whether in actual application it would still be constitutional (or in legal terms, an “as applied challenge”). FEC v. Wisconsin Right to Life resolves the question of the as applied challenge. Chief Justice Roberts, the majority author, decided that McCain Feingold is unconstitutional as applied to the issue ads by WRTL without reversing McConnell. Justice Alito concurred, noting that he would be open to overruling McConnell depending on the effect of the WRTL case’s effect. Justices Scalia, Thomas, and Kennedy concurred in the result, but stated that McConnell should be overruled. Justices Souter, Stevens, Breyer, and Ginsburg dissented.

In a sense this is both a small and a big win for free speech. It’s a small win because the actual outcome is fairly narrow. This follows the general judicial philosophy of Justices Roberts and Alito, who generally have been deciding cases on narrow grounds rather than making grander pronouncements. Roberts’ declination to overrule McConnell makes this holding of this case fairly narrow, dealing only with what is and what isn’t an issue ad. Much like the partial-birth abortion case, Gonzales v. Carhart, the narrow grounds upon which the case was decided tempers the ability of the winning side to make any grand pronouncements as to the effect of the case.

On the other hand, this is a big win for McCain-Feingold’s opponents. The test set forth by Roberts is exacting. It will make McCain-Feingold essentially toothless for any political ad other than those expressly advocating the election or defeat of a candidate. Additionally, WRTL paves the way for further erosion and the possible overturning of McCain-Feingold in its entirety. Three Justices already openly advocate it. Alito signaled that he could be convinced to do so. Roberts is more cryptic, but it seems likely at the least that he would also be willing to overturn it. Such a reversal would be a huge win for such a conservative cause as the First Amendment. (Note that usually the first amendment is a clarion call for liberals defending the worst human behavior – i.e. “bong hits for Jesus - while suppressing its intended purpose of promoting political speech).

McCain (and possibly Fred Thompson) should be embarrassed for supporting such a blatant infringement of the First Amendment. While his concern with political corruption is laudable, silencing political speech is directly prohibited by the First Amendment, and certainly is not the method to avoid corruption. That McCain would choose to sacrifice free speech for the sake of political candidates is indefensible. Roberts’ judicious approach to the law leaves McCain-Feingold still alive but on life-support. Had Justice Scalia been writing the majority opinion, he would have left nothing of McCain-Feingold’s restrictions on speech. Indeed, as Scalia notes in his concurrence:

There is wondrous irony to be found in both the genesis and the consequences of [McCain-Feingold]. In the fact that the institutions it was designed to muzzle—unions and nearly all manner of corporations—for all the “corrosive and distorting effects” of their “immense aggregations of wealth,” were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including incumbents). In fact the effect of [McCain-Feingold] has been to concentrate more political power in the hands of the country’s wealthiest individuals and their so-called 527organizations, unregulated by §203. (In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to 527s.) And, in fact, while these wealthy individuals dominate political discourse, it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled.

Score this a win for free speech and Romney.