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Conventional wisdom is already gathering around the idea that the U.S. Supreme Court took a sharp conservative turn last week as it completed its latest term. But at least one of the cases cited in that analysis does not support the conclusion.
In Federal Elections Commission v. Wisconsin Right to Life, the court’s 5-4 ruling breathed new life into the First Amendment, finding that Congress had overstepped its authority to regulate political speech.
Don’t be fooled by the anti-abortion group at the center of the case. The winning side also included the American Civil Liberties Union, the AFL-CIO and the Alliance for Justice, an association of environmental, civil rights, mental health, women’s, children’s and consumer advocacy organizations.
All of these groups, plus the U.S. Chamber of Commerce, the National Rifle Association and the NARAL Pro-Choice American Foundation, were united in their belief that it was unconstitutional for Congress to restrict their right to air political issue advertisements in the weeks before an election.
The Supreme Court agreed, pausing, at least for now, our long slow slide toward allowing the government to decide who can join the political debate, and how. The court may never return to the absolute standard in the Constitution — Congress “shall make no law” abridging the freedom of speech — but with this decision, the justices have stopped the bleeding.
The case focused on the Bipartisan Campaign Reform Act, better known as “McCain Feingold” for its authors, Sens. John McCain, R-Arizona, and Russell Feingold, D-Wisconsin. That law sought to ban labor unions and corporations, including nonprofit grass-roots groups, from broadcasting campaign ads within 30 days of a primary election or 60 days before a general election.
Those groups have long been prohibited from contributing directly to the campaigns of incumbents and other candidates on the rationale that direct contributions could corrupt candidates and elected officials. But the court also had ruled that the groups had a First Amendment right to broadcast their views directly to the voters, without contributing any money to a candidate.
Congress, however, decided that even those ads had a corrupting influence, if not on the candidates themselves then on the political process as a whole. So it banned all political advertising by labor unions and corporations that mentioned a candidate by name in the period before an election, even if the ad’s main message was about an issue, not the candidate.
The Supreme Court examined the new law in 2003 and left most of it standing. But it also expressed concern that the advertising ban might cross the line and improperly prohibit speech that was not aimed at influencing an election. It left the door open to taking another look at that question later.
That’s what this case did. Wisconsin Right to Life (WRTL) aired radio ads in the summer of 2004 calling on voters to contact their senators and urge them to end a filibuster of President Bush’s judicial appointees. The ad mentioned Feingold at a time when he was running unopposed in the Democratic Party primary.
The Federal Elections Commission later ruled that the ads violated the campaign finance law because they mentioned Feingold’s name when he was appearing on the ballot. And the commission said it based its decision not just on the content of the ads but on the context in which they were aired.
But the court, in a decision authored by Chief Justice John Roberts, has now said that the standard Congress applied was too harsh, and too rigid. It is one thing to balance the First Amendment against the need to prevent corruption of public officials. But by extending its ban to independently financed ads that merely mentioned a candidate, Congress had reached beyond its authority.
“Enough is enough,” Roberts wrote. “Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL’s ads with contributions is to ignore their value as political speech.”
Instead, Roberts said, Congress can ban only those ads that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
And if there is a close call, he said, the benefit of the doubt should go toward free speech, not regulation.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Roberts wrote. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
The facts in this case demonstrate why it was a mistake for the court to allow Congress to go down this road in the first place. When Congress regulates political speech, its interests are in limiting debate, protecting incumbents and insulating the members from criticism or even public pressure. That’s why the Founders tried to keep them out of this business from the beginning.
The only campaign finance rule that is truly consistent with the First Amendment is a requirement that politicians disclose all the contributions they receive so that voters can decide for themselves if they think a candidate or an incumbent has been corrupted by the money.
(Contact Daniel Weintraub at firstname.lastname@example.org. His blog about health care is at www.sacbee.com/healthcare.)