Posted on 06/25/2007 8:46:09 AM PDT by neverdem
Associated Press
The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.
The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.
The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.
Feingold, a co-author of the campaign finance law, was up for re-election in 2004.
The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.
Chief Justice John Roberts, joined by his conservative allies, wrote a majority opinion upholding the appeals court ruling.
The majority itself was divided in how far justices were willing to go in allowing issue ads.
Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court's 2003 decision upholding the constitutionality of the provision.
Roberts and Justice Samuel Alito said only that the Wisconsin group's ads are not the equivalent of explicit campaign ads and are not covered by the court's 2003 decision.
LOL...
They're upholding something that is unconstitutional, which is bad no matter how you spin it.
“They’re upholding something that is unconstitutional, which is bad no matter how you spin it.”
No, they did not address the constitutionality of the act in its entirety.
Justice Scalia did.
And if Roberts and Alito had followed his lead, as did Thomas and Kennedy, this conversation would be over, and we'd have the First Amendment back.
Scalia:
Which brings me to the question of stare decisis. “Stare decisis is not an inexorable command” or “’a mechanical formula of adherence to the latest decision.’” Payne v. Tennessee, 501 U. S. 808, 828 (1991) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). It is instead “’a principle of policy,’” Payne, supra, at 828, and this Court has a “considered practice” not to apply that principle of policy “as rigidly in constitutional as in nonconstitutional cases.” Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962). This Court has not hesitated to overrule decisions offensive to the First Amendment (a “fixed star in our constitutional constellation,” if there is one, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)).and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.
Of particular relevance to the stare decisis question in these cases is the impracticability of the regime created by McConnell. Stare decisis considerations carry little weight when an erroneous “governing decisio[n]” has created an “unworkable” legal regime. Payne, supra, at 827. As described above, the McConnell regime is unworkable because of the inability of any acceptable as-applied test to validate the facial constitutionality of §203.that is, its inability to sustain proscription of the vast majority of issue ads. We could render the regime workable only by effectively overruling McConnell without saying so. adopting a clear as-applied rule protective of speech in the "heartland" of what Congress prohibited. The promise of an administrable as-applied rule that is both effective in the vindication of First Amendment rights and consistent with McConnell's holding is illusory.
It is not as though McConnell produced a settled body of law. Indeed, it is far more accurate to say that McConnell unsettled a body of law.
In case you didn’t notice, what I just posted from Justice Scalia was a hard slam against Roberts and Alito.
I’m starting to see Roberts and Alito as Sandra Day O’Conner redux: Unreliable and unpredictable.
In the long term, a philisophy of deciding only what you have to decide to reach the decision is a proper judicial approach. I agree with you that some precedents from the past 40 years of excess (like McConnell) "just need killin'." They will be killed eventually. But the court is going to go at it one step at a time.
I am very pleased with this decision. Were we ever to get one more real conservative on the Court, this would go down as one of the great Supreme Courts in history.
That makes me chuckle, albeit ruefully. I thought the Republican establishment told us that Roberts and Alito were just that.
To kinda paraphrase Barry Goldwater:
Judicial restraint in the defense of unconstitutional “law” is a vice.
This does not bode well for how this particular Court might deal with Roe.
If you want to be saddened by this decision, and view Alito and Roberts as RINOs or traitors, by all means go ahead. I was simply trying to give you some history of this case, and another viewpoint to take. You could also be saddened by the partial birth decision than banned that abomination. It’s a way of looking at the world, but it does not IMHO reflect the reality of Supreme Court jurisprudence.
If Jim Bopp had postured WRTL II as a facial challenge immediately after McConnell was decided denying the facial challenge, WRTL II never gets to the SCOTUS, if it was appealed at all. The Circuits uniformly apply McConnell, there is no split and it would be spun as naked activism to even take the case. Being an accomplished constitutional lawyer, he brought an as-applied challenge. The case was brought that way for a compelling reason [that it could make it back to the Court and limit McCain-F], and it was decided by Roberts and Alito that way.
NOW there will be an inconsistency between 2 SCOTUS opinions that the Court will need to revisit, as well as different interpretations of the new test to be resolved. It will be back up to SCOTUS pretty quickly, probably being filed this November.
Would I like to have BCRA declared unconstitutional? Heck yeah. But things just aren’t done that way at SCOTUS, and Roberts and Alito did not want to start a bad precedent. I would not be surprised, frankly, if Scalia Thomas and Kennedy weren’t on board. Scalia probably doesn’t want to set an activist precedent either, so it could have been set up for the vote to favor the as-applied, with the 3 and Alito inviting the renewed facial challenge, creating an ambiguity that must be resolved. Speculation, but plausible.
Who knows, in the end. Perhaps they are wimps or traitors. Whatever the reason, I find it hard to see WRTL II as a bad thing.
Scalia will go about it his way, and Roberts and Alito will go about it their way. We will see what the future will bring in terms of cases.
Jim Bopp’s posturing is one thing I couldn’t care less about, thanks.
Nah. If he'd have done that, they'd have had to revisit McConnell.
I don't see how this is something to celebrate. It's yet another sham. It seems to say that it's OK (as I guess they decided in McConnell?) for the gubmint to limit campaign ads or appeals to vote for or against someone. What's so great about that?? They are saying it's ok to run generic issue ads, which, with a wink and a nod, are similar to election ads. What a mess! So now you have sham 527s skirting accountability, and now sham "issue" ads. This is supposed to be a good thing? On what planet?
I don’t think he said that. He said it doesn’t apply to issue ads. Roberts and Alito are both apparantly upholding that it’s ok for the gubmint to restrict appeals to vote for someone or the other. The law hasn’t become any less egregious.
I don’t think it gets rid of it, but it opens a loophole to get around it.
Best Of The Web
BY JAMES TARANTO
http://www.opinionjournal.com/best/
Monday, June 25, 2007 3:19 p.m. EDT
First Amendment Rehab
“Congress shall make no law . . . abridging the freedom of speech,” commands the First Amendment of the U.S. Constitution. Over the years the Supreme Court has expanded the meaning of this clause. Under a doctrine known as “incorporation,” the court’s case law protects speech from encroachment not only from laws passed by Congress but from state and local laws and administrative actions.
At the same time, the court has adopted a capacious definition of speech, which goes far beyond what lawyers call “core political speech.” This has all generally occurred under the rubric of “liberal judicial activism.” But there is one circumstance in which justices who operate under that rubric are inclined to defer to government: when Congress actually does pass a law abridging core political speech. Justice Antonin Scalia summed up the point in the 2003 case of McConnell v. Federal Election Commission:
Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.
So it’s encouraging to see a pair of cases the court decided today, in which it moved toward an approach true to the actual meaning of the First Amendment. In FEC v. Wisconsin Right to Life, reports the Associated Press, the court “loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision” of the McCain-Feingold law restricting campaign speech:
The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group’s First Amendment rights, the court said.
Chief Justice John Roberts wrote the ruling, which the court’s newest member, Justice Samuel Alito, joined. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas agreed that the provision was unconstitutional but wanted to go further and overturn McConnell v. FEC, in which they had dissented.
Chief Justice Roberts wrote the opinion for the same majority in Morse v. Frederick. This is the famous “Bong Hits 4 Jesus” case, described by the AP:
Joseph Frederick unfurled his homemade sign on a winter morning in as [sic] the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.
Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.
“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”
Morse suspended the student, prompting a federal civil rights lawsuit.
In dissent, Justice John Paul Stevens (joined by David Souter and Ruth Bader Ginsburg) declared:
I agree with the Court that the principal should not beheld liable for pulling down Frederick’s banner. . . . I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” . . . cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.
But when it comes to regulating core political speech, in the view of Stevens and his fellow dissenters (along with Stephen Breyer), the First Amendment doesn’t demand so much. This is Souter speaking for the quartet in his Wisconsin Right to Life dissent:
Campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries, with no redolence of “grassroots” about them. Neither Congress’s decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.
In other words, Congress has to restrict political speech because it’s so important. Funny, but we thought that the exact reason the Founding Fathers said Congress couldn’t restrict it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.