The Supreme Court's ruling essentially — if not explicitly — killed off the most offensive section of the Bipartisan Campaign Reform Act of 2002... 'No Reasonable' Chance of Survival for McCain-Feingold

We waited far too long for the highest court in the land to issue the ruling that finally came down Monday in Federal Election Commission v. Wisconsin Right to Life.

"Enough is enough," Chief Justice John Roberts wrote in his principal opinion, making it perfectly clear that "when it comes to drawing difficult lines in the area of pure political speech ... we give the benefit of the doubt to speech, not censorship."  Indeed, in an emphatic tour de force conclusion, the Chief Justice left no room for doubt that the "First Amendment's command that 'Congress shall make no law ... abridging the freedom of speech' demands at least that."

The Supreme Court's ruling essentially — if not explicitly — killed off the most offensive section of the Bipartisan Campaign Reform Act of 2002, which made it a crime for not-for-profit groups like the Center for Individual Freedom to pay for political speech on public issues, in the form of television and radio advertisements, if the ads dared to refer to candidate running for federal office in the days and weeks before an election. 

In fact, such formality of issuing a death certificate through specific language striking McCain-Feingold's "electioneering communication" ban and overruling the High Court's earlier decision upholding it was wholly unnecessary.  After all, the rest of the justices — including the four liberals who dissented from Monday's judgment — were specific as to the date and time of campaign finance reform's demise.

Quite simply, the Chief Justice, along with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, corrected the constitutional catastrophe the four liberal justices plus retired Justice Sandra Day O'Connor had wreaked three-and-a-half years ago.  And, in doing so, Monday's principal opinion did not mince words about the misguided nature of the earlier decision in McConnell v. Federal Election Commission, re-drawing the First Amendment line in the sand where it had been before McCain-Feingold.

"The Government may not suppress lawful speech as the means to suppress unlawful speech," the Chief Justice quoted from a five-year old ruling that found the First Amendment protected much-less favored expression, specifically, virtual images of child pornography.  "Protected speech does not become unprotected merely because it resembles the latter."

For those who follow election law, the meaning was obvious, the McCain-Feingold law and the McConnell decision were dead, long live Buckley v. Valeo.  And, for those who don't know all the statutes, case names and buzz words, the Chief Justice spelled it out.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," the principal opinion instructed.  Thus, "we reject the contention that issue advocacy may be regulated because express election advocacy may be."  This breathed renewed legal life into Buckley's generations-old "magic words" test.  In fact, the ruling specifically held that the Constitution only permitted regulation of political speech when "the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate."

What's more, the Chief Justice warned that "the proper standard" in showing that any political speech is unprotected "must be objective, focusing on the substance of the communication rather than the amorphous considerations of intent and effect."  In other words, it matters neither that the speaker intended to influence the election, nor that the advertisement actually had that effect.  Instead, if there is to be any restriction at all, "it must give the benefit of the doubt to protecting rather than stifling speech."

It has been a tortured path restoring political free speech rights to America writ large.  From a failure to convince a majority in Congress that the Constitution is more important than their jobs, to a President who succumbed to politics in pawning the issue off onto the courts, to a monumental legal loss that restricted more political speech than any other ever in American history, the First Amendment easily could have been a permanent victim.  Monday's decision ended that chain of events, turned the tables, and made it all but certain that it is McCain-Feingold that has no reasonable chance of survival.

June 29, 2007
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