Posted on 06/25/2007 8:46:09 AM PDT by neverdem
Some of Scalia's commentary:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: . .I.m not a revolutionary, I.m just defending freedom of speech. . . . I never said we had to change the king.no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?. .1 Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running. That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the constitutionality of which we upheld three Terms ago in McConnell v. Federal Election Comm.n, 540 U. S. 93 (2003).
It’s nearly 100 pages total and it took a long program and my computer is excellent (the only one I’ve ever had) at opening PDFs.
Scalia:
As an element essential to that determination of constitutionality, our opinion left open the possibility that a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional because it was (to pursue the analogy) only the king’s policies and not his tenure in office that was criticized. Today’s cases present the question of what sort of showing is necessary for that purpose.
For the reasons I set forth below, it is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced in McConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.
Yup
There is a reason that there is a distinction between facial challenge and as-applied challenge. Oversimplified, the McConnell Court upheld BCRA s 203 on a facial challenge. An as-applied challenge was then brought - regulation advocates will say “manufactured”. It takes years to get these to the SCOTUS, and this case came up as an as-applied only. Having been beaten on the facial challenge, McCain-F opponents tried to limit it in an as-applied. You see today the fruits of that years-long effort.
You lose, then you chip away. Then when the tide turns, you go after the facial challenge again. It is the culmination of a great strategy. Jim Bopp was wise to present it this way, and the Justices were correct in ruling as it was presented. Now it will be presented again, in a context that sets the stage for a facial challenge, and I bet that Roberts and Alito both vote to overturn.
http://www.scotusblog.com/movabletype/archives/2007/06/wrtl_big_win_fo.html
Your interpretation is short sighted and narrow and shows a misunderstanding of the true impact of this discion and the doors it opens.
bttt
IIRC, Alito has said that the ban on the sale of new machine guns that was slipped in the Firearm Owners Protection Act of 1986 was unconstitutional.
That can easily be interpreted as a ban on crew served weapons only, not what is commonly carried by the individual members of the unorganized militia for their personal firearms. IMHO, you're being unduly pessimistic. Read Parker v. Washington D.C. in HTML courtesy of zeugma, if you haven't already.
Both the requirements of the right to self defense and what Congress expected individual members of the militia to bring when mustered are discussed in detail.
John / Billybob
Thanks for the explanatory comments for those without formal training.
Thank you. Will you head back to work at SCOTUS, or are you going after Heath Shuler? Either way, good luck!
John / Billybob
They punted. That’s the fact of the matter. And they didn’t have to...they could have walked into the end zone for freedom.
This is a correct statement. All five justices in the majority agreed this is true. Three of the five would have overruled McConnell (the 2003 decision).
The court did not have to decide the constitutionality of CFR as a whole. Only that it was unconstitutional as applied to the facts of this case. And issuing limited decisions in not bad judging.
It was implicitly a facial challenge. Wisconsin Right to Life knew and admitted that they knew the ad, benign as it was, was in violation of M-F. And they did it anyway, because they wanted to challenge the law.
And Roberts and Alito did nothing but further confuse the issue, and allow the continuation of a Bill of Rights with the First Amendment exised out, so that only the benign things, like that little meaningless ad [Feingold had no opponent].
It’s pathetic. All they had to do was follow the lead of Scalia, and they failed.
It is when the Bill of Rights is clearly being trashed, and when their decision does nothing but further muddy the waters...waters that were already muddy enough because of the Court.
They could have. They could also have overruled Roe, and nobody could do anything about it. I realize that is an extreme “example”, but aside from degree, the reason is the same that they didn’t overrule Roe or McConnell/BCRA.
I believe there are perfectly legitimate, in fact proper and in the context of judicial restraint quite laudable, reasons why they did not overrule McConnell. You have to be aware of the history of the BCRA decisions and more particularly the lower court history of WRTL II. Scalia would have gone farther, but the point is that there are reasons other than being wimpy/traitors/Bushies that Scalia and Roberts chose not to.
Excellent news. This will put a big dent in CFR and restore much more free speech. I think that it was wise of Roberts and Alito not to overturn the entire law just yet because it could set a precedent for judicial overreach in the future that we wouldn’t like. It’s often best to do these things incrementally and specific to the case at hand.
What, like being illogical?
As Scalia pointed out in his concurring opinion, the only way they can even be addressing this, is in the context of its constitutionality.
He made it clear that if they were to deal with this issue properly, they would have to overturn McConnell to do it. Either you uphold McConnell and restrict their ability to put these ads on the air, or you overturn McConnell, and find the electioneering communications portion of M-F to be unconstitutional.
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