The American Mind

The Surpreme Court blew a hole in the McCain-Feingold first amendment restriction law:

The U.S. Supreme Court, ruling 5-4 in favor of Wisconsin Right to Life, said a portion of the McCain-Feingold campaign finance law of 2002 was unconstitutional.

The law is named for Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.).

The law prohibited corporations and unions from using general treasury funds to pay for what’s known as “electioneering communications.” These are broadcast ads referring to a candidate for a federal office and airing within 30 days of a primary or within 60 days of a general election.

Those time frames are known as the “black-out” period.

At issue were ads Wisconsin Right to Life sought to run in 2004 during the black-out period. The ads urged people to contact their senators and ask them to vote against the expected filibusters of nominees for federal judgeships.

Feingold was up for re-election that year, but the anti-abortion group maintained its ads — which it did air before the “black-out” period — were constitutionally protected “grassroots lobbying.”

Chief Justice John G. Roberts agreed, saying, “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”

He said political speech would be chilled if people did not know whether they could speak and avoid a felony. “We give the benefit to speech, not censorship,” he said.

A problem with the law as shown by the Wisconsin Right to Life (WRTL) case is it’s really hard to distinguish between an ad asking people to act on current issue like federal judicial nominations and a full-blown campaign ad. It’s especially difficult when Congress is in session during a campaign season. Politics, advocacy, and elections are highly intertwined.

This ruling allows groups to air issue ads with candidates mentioned during election season. The easiest way to take advantage of the ruling is to throw in the name of an elected official not up for re-election emulating what WRTL tried to do. That means in every U.S. senate race you will see ads asking people to contact both Senators.

Betsy Newmark and Ed Morrissey are disappointed the court didn’t rule McCain-Feingold unconstitutional.

I agree with Ed that “Roberts probably wanted to gain a stronger consensus before declaring that portion of the BCRA unconstitutional.” I’m guessing that was a major concern since the court recently ruled McCain-Feingold constitutional only a few years ago. It’s important that the court doesn’t appear to be flipping and flopping bringing too much uncertainty into Supreme Court rulings.

“Court Allows Issue Ads Near Elections” [via memeorandum]