Two Seats From Free Speech

Senator Russell Feingold didn’t ask Judge John Roberts any questions about the constitutionality of campaign finance “reform” during his four-day-long confirmation hearing.  And Senator John McCain couldn’t ask because he doesn’t sit on the Senate Judiciary Committee.

But now, with Roberts’ confirmation as the 17th Chief Justice of the United States and another Supreme Court nominee waiting in the wings to take Justice Sandra Day O’Connor’s seat, the only certainty is that McCain-Feingold will be front and center during the next confirmation hearing.  After all, the two Senators’ campaign against the First Amendment ultimately will hinge upon how the two new justices vote.

The eight long-sitting justices made that a reality Tuesday when they agreed to decide not one, but two campaign finance cases this term.  Indeed, the Supreme Court will not only revisit whether a candidate’s constituents can mention the candidate’s name on television and radio just weeks before an election, but the Court will also reconsider whether the government can impose spending limits on the candidates themselves.  And, since the High Court won’t hear the cases until at least January and will decide them months later, there will be plenty of time for Justice O’Connor’s replacement to be confirmed.

In other words, the new Roberts Court could finish the job of nullifying constitutional protection for political speech — a job begun by Senators McCain and Feingold in their Bipartisan Campaign Reform Act.  Or, the new Supreme Court could re-establish the First Amendment rights of all Americans by finally rejecting the two Senators’ theory that American democracy is best served when no one can talk about it.

The stakes are just that high, as we all learned less than two years ago when the Supreme Court upheld virtually all of restrictions imposed by McCain-Feingold despite the First Amendment’s clear command that “Congress shall make no law … abridging the freedom of speech.”  Numerous groups on the Right and the Left, including the Center for Individual Freedom, argued that if free speech meant anything at all it had to mean that the government couldn’t make it a crime for citizens to pool their resources to pay for television or radio time to discuss the positions of their elected representatives.  But five justices, led by Justice O’Connor, disagreed.

Now that bare majority could flip if — and this is a big if — both Chief Justice Roberts and Justice O’Connor’s replacement vote to strike down any restriction on political speech.  That this historically and constitutionally correct understanding of the First Amendment is so far from assured demonstrates just how twisted the Supreme Court’s free speech jurisprudence has become.  Indeed, at least one justice on the High Court — Justice Stephen Breyer — has gone so far as to assert that the underlying purpose of the First Amendment is sometimes best served by limiting speech in order to promote equality in the marketplace of ideas.

So the stage is set for another term of brinksmanship at the High Court with the same rules as always.  It takes five votes to win, and we know there are four votes against (Justices Stevens, Souter, Ginsburg & Breyer) and three votes for (Justices Scalia, Kennedy & Thomas) the First Amendment.  Now we can only hope that constitutional protection for political speech didn’t lose a vote in the center seat and can pick up another on the side.