If you believe the Supreme Court press corps, then the campaign finance decision handed down this week was a shot across the bow of McCain-Feingold -- a precursor to returning political speech to its most free status. A Small Step for Political Speech, a Giant Leap for the First Amendment?

If you believe the Supreme Court press corps, then the campaign finance decision handed down this week was a shot across the bow of McCain-Feingold -- a precursor to returning political speech to its most free status.

Under the headline "Campaign Finance Law May Have a Loophole: Some Issue Ads Could Be Exempt, Justices Say," the Washington Post's Charles Lane claimed Tuesday's decision created "the real possibility that the courts could later devise a loophole for many corporate or union [political] advertisements."  Tony Mauro of American Lawyer Media, which publishes the National Law Journal and the Legal Times, went even further, writing that the ruling "cast a significant shadow on the Court's 298-page landmark ruling in McConnell v. FEC[, which] upheld virtually all of the McCain-Feingold campaign-finance law" just two years ago.  "[Y]esterday's ruling seemed to chart a new direction," Mauro concluded, "opening the door to the very exceptions and line-by-line scrutiny that the Court once discouraged. ...  [T]he ruling has cast uncertainty over the future course of campaign finance regulation."

Call us skeptical, but we're not yet sure.  While we can be pleased with the surprise ruling, it's too early to tell if the necessary five justices have yet seen the error of the High Court's ways in deciding the First Amendment means Congress can make a law abridging the freedom of speech to protect politicians from public dissent.

Indeed, the likely swing vote in any upcoming free speech vs. campaign finance reform litigation was not even able to participate in Tuesday's decision because he is still awaiting confirmation by a majority of the U.S. Senate.  And, even the closest examination of Judge Samuel Alito's decade-and-a-half long judicial record doesn't reveal how he will rule in this area once he arrives at One First Street.  After all, there's the deferential Alito, who may mistakenly give Congress and the Federal Election Commission wide latitude to act.  But there's also the constitutionalist Alito, who correctly understands that political speech is the core of what the First Amendment protects.

The new Chief Justice, John Roberts, isn't a sure bet to role back so-called campaign finance "reform" either.  Yes, it's true that he was more than skeptical of the position taken by the government at the oral argument for the case decided Tuesday.  But the objections he voiced weren't about the fundamentals of whether Congress or the FEC can restrict or regulate how citizens pay for and engage in political speech.  Rather, Chief Justice Roberts objected to the "bait and switch" argument presented by the Solicitor General, who had claimed that the Court's earlier decision foreclosed all as-applied challenges -- in spite of arguing two years ago that any "real world" constitutional problems with McCain-Feingold could be worked out by the courts through exactly those means.  In other words, we don't yet know whether the Chief Justice's vote Tuesday was for one time only or represents his principled opposition to restrictions on core protected speech.

What we do know is that there are still four votes (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) to uphold almost any campaign finance "reform," just like there are three votes (Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas) to overturn any law or regulation that restricts the public's freedom to widely and vocally criticize their elected representatives.  The oral argument made this abundantly clear.

So what is there to be happy about in Tuesday's decision?  Well, at least it was a step forward rather than a step backward for the First Amendment.  We now have a unanimous opinion from the highest court in the land that unequivocally holds Americans can continue to constitutionally challenge limits on their ability to speak out about their elected officials and those who want to be.  And, while this may be a small step for political speech, it is a giant leap for the First Amendment, especially compared to how five justices treated that constitutional command two years ago.  As Law Professor Richard Hasen wrote on his election law blog, this small step "could be significant" because, as the courts and the FEC now cannot stay "out of this mess," each as-applied challenge could be another "important ... step toward undermining McConnell."

January 26, 2006
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