Some justices seem to rethink campaign-finance ruling

http://www.firstamendmentcenter.org/ ^ | 1 18 06 | Tony Mauro

[freepatriot32]

WASHINGTON — It was deja vu all over again at the Supreme Court yesterday, as justices reprised the First Amendment debate over provisions of the federal campaign-finance law that restrict electioneering ads just before an election.

In the 2003 litigation over the law that resulted in the ruling McConnell v. Federal Election Commission, the First Amendment lost, with a majority of the Court upholding the restrictions on their face, even though they restrict speech when it arguably matters most.

Yesterday, presented with a real-life challenge by a Wisconsin antiabortion group that had to yank its advertisements off the air because of the restrictions on electioneering ads, some justices appeared to have second thoughts while others appeared annoyed that the issue was being revisited at all.

“You have a very good argument, but we heard it right in that case,” Justice Stephen Breyer told James Bopp, lawyer for the Wisconsin group, referring to the McConnell decision. “What’s different, or are you asking us to undo what we did?”

Bopp said the ads at issue were examples of “grassroots lobbying” on a legislative issue, which should not be covered by the ban on the broadcast of electioneering ads directly funded by corporations and unions right before elections. “There is more to government than elections,” Bopp said.

Justice Antonin Scalia for his part said the law restricted a “very fundamental guarantee” of free speech, telling Solicitor General Paul Clement, “Maybe you can’t do entirely what you want to do.” Clement was defending the law on behalf of the Federal Election Commission.

But by the end of the hour, it appeared very possible that those second thoughts expressed by Scalia and others will turn into third thoughts; the case may have to be argued yet again.

Retiring Justice Sandra Day O’Connor, probably in her final days on the bench, participated in yesterday's arguments in Wisconsin Right to Life Inc. v. Federal Election Commission. She was the key fifth vote in favor of the restrictions in 2003, but if she leaves the Court before it issues its ruling — as appears almost certain — the Court could divide 4-4. It could leave that tie vote in place, which would let stand the lower court decision favoring the law. Or it could schedule a new round of arguments in the case once nominee Samuel Alito Jr., whose confirmation is expected, takes his seat.

The case argued yesterday was an inevitable outgrowth of the McConnell decision, which assessed the Bipartisan Campaign Reform Act in the abstract, before anyone actually harmed by the law had a chance to sue. But such a ruling would ordinarily leave the door open to “as-applied” challenges — disputes that would display real-life problems showing how the law was affecting actual campaign speakers.

Wisconsin Right to Life, a nonprofit corporation, used its funds in 2004 to run broadcast ads urging both of that state’s senators, Russ Feingold and Herb Kohl, not to filibuster President Bush’s judicial nominees. But because Feingold was running for reelection and the ads mentioned him by name, airing them within 60 days before the fall election would violate the campaign-finance law, even though the ads did not urge listeners to vote for or against Feingold.

Just before the 60-day mark, the Wisconsin group challenged the law in court, but was rebuffed. A three-judge panel ruled that McConnell precluded “as-applied” challenges such as that filed by Wisconsin Right to Life.

In yesterday's oral arguments, Chief Justice John Roberts Jr. rebuked Solicitor General Paul Clement for taking the same position against as-applied challenges. Roberts, who once served in the solicitor general’s office, said the government’s position amounted to “classic bait and switch,” because during the McConnell litigation the government indicated as-applied challenges would be possible.

Clement indicated in response that McConnell was one of those decisions that is definitive enough that they leave no room for as-applied challenges.

But Roberts replied that First Amendment cases were different, implying that as-applied challenges should generally be permitted. If Roberts votes against the government, he would mirror the position of his predecessor William Rehnquist.

Clement said that because it is difficult to categorize slightly differing kinds of ads, “you need a bright-line rule.”

The ads in question, Clement said, would have been permitted had they not mentioned candidate Feingold by name or if they had been funded by the Wisconsin group’s more closely regulated political action committee. That PAC had targeted Feingold as a candidate who should be defeated.

Justice Anthony Kennedy voiced concern that the law requires government to examine an organization’s “ideological pedigree” and bases its restrictions on the content of the advertising, both features objectionable under the First Amendment.

[freepatriot32]

Libertarian ping.To be added or removed from my ping list freepmail me or post a message here

[airborne]

Maybe John McCain could use this as an issue for the 2008 elections.

Admit that CFR was a mistake, and work to rescind it.;^)

[Wolfstar]

Breyer: “What’s different, or are you asking us to undo what we did?”

In a word, yes.

[DoNotDivide]

"“What’s different, or are you asking us to undo what we did?”"

Yes, be a man and right the wrong.

[calex59]

Maybe they will get this unconstitutional law off the books. Just another reason for the rats to delay the vote on Alito.

[goldstategop]

Constitutionally Forcible Rape is the reason I will never vote for John McCain as President. The man has dyslexia when it comes to the First Amendment.

(Denny Crane: "I Don't Want To Socialize With A Pinko Liberal Democrat Commie. Say What You Like About Republicans. We Stick To Our Convictions. Even When We Know We're Dead Wrong.")

[Tall_Texan]

How this bull($%#^) became law to begin with still amazes me. That so many on both sides of the aisle and those who swear to uphold and defend the Constitution allowed this clearly unconstituional obscenity to become law illustrates why our country is in such crisis.

One more reason I will NEVER vote for Judas McCain.

[H. Paul Pressler IV]

Too bad President Bush cannot undo his signature on CFR and Veto the legislation.

[VeniVidiVici]

A freakin' baboon could see this violates free speech. What the heck is the problem?

[Congressman Billybob]

As someone who filed a brief in the McConnell case, and resigned in disgust from the Supreme Court Bar (after 32 years) over that case, I take this issue very seriously. I agree with the conclusions of this article that the Court is reconsidering its McConnell ruling. And it is doing so on a basis that has arisen many times before, that a law ruled constitutional on a facial challenge is nonetheless open to being struck when it is actually applied in a real-world situation.

The only error in this article is the suggestion that the Court might split 4-4, and leave it that way. There is a procedure which is followed, when a Justice leaves the bench after a case is argued, but before the decision is handed down. (That time span is 60 to 90 days, usually.) Even though cases are tentatively decided in the private conferences the Court holds on Friday of every week, the decision is not final until the decision is handed down.

Based on the prior instances when Justices are replaced, if the vote of the departing Justice would have determined the outcome of the case, the case is reset for argument before the Court with the new Justice seated. And when Alito is seated, he will probably vote to protect the First Amendment, which Justice O'Connor did not do in the McConnell case itself.

I expect this case to be decided 5-4 in favor of Wisconsin Right to Life, with Justice Alito casting the deciding vote. I also expect the Court to be cowardly in its decision and explain that it is not "reversing" McConnell, but only "distinguishing it on the facts." But it will have much the same result as a reversal.

Congressman Billybob

Latest column: "On Judge Alito, the San Francisco Chronicle is Unfit to be a Newspaper"

[DoNotDivide]

Wonderful insights! Great post. You are a national treasure IMO.

[devolve]

[Wilhelm Tell]

CFR was a major victory for the socialists - now their apartchiks get to determine what political speech is or is not covered by the First Amendment. It should have never gotten to the point where one man (first, President Bush, who failed, and now, probably, Alito) is all that stands between freedom and political censorship.

Thanks to incumbents who have shady pasts but who present themselves to an unquestioning media as saviors who will end corruption just as soon as that pesky First Amendment "loophole" is taken care of. All of this in the context of the chattering class discussing in all seriousness the "civil rights" of foreign terrorists while the First Amendment rights of peaceful citizens are held in contempt!

[bkepley]

McConnell seems to me to be one smart dude.

[Clump]

Justice Anthony Kennedy voiced concern that the law requires government to examine an organization’s “ideological pedigree” and bases its restrictions on the content of the advertising, both features objectionable under the First Amendment.

Doesn't look like he is going anywhere. Now all we need is Alito, and McCain can take his reform elsewhere.

[dixiechick2000]

What a happy looking trio!
I really like that gif!
Thanks, devolve! ;o)

And, thank you for your thoughts, C.Billybob.
You know they are very respected, and much appreciated.

[devolve]

Sally 1.0

for the blondes at FR

working on animation now

[dixiechick2000]

I'm looking forward to seeing the finished product!

[Always Right]

I remember reading some DU post that was shocked after the Supreme Court upheld McCain-Feingold. He commented that weren't those the 5 most liberal justices and aren't they suppose to defend free speech. Sometimes I marvel at just how ignorant liberals are.