Free Speech: FEC, McCain, et al. v. WRTL

Well, I have completely read the Supreme Court decision in the case of the Federal Election Commission vs. Wisconsin Right-to-Life; Senator John McCain, et al. vs. Wisconsion Right-to-Life.

This case, to my reading, deals with the influence of corporate and union money in politics. A century's worth of legislation and case law has attempted to eliminate corporate and union contributions to, and expenditures on behalf of, political candidates for Federal office. The main purpose is to eliminate even the appearance of corruption and quid pro quo votes.

Cleverly and as expected, the money has found routes around regulations. McCain-Feingold attempted to create new barriers by controlling ads that advocate a candidate's defeat or election while pretending to be issue ads. These are called express advocacy ads. At issue is how to decide whether an ad is, or is not, an express advocacy ads.

The dissenters apply a standard that would prohibit ads that are essentially innocuous based on 1) the actual appearance of a candidate's name in the ad (urging viewers to contact Senator Feingold -- not mentioning voting at all) and 2) the "context" including other ads sponsored by organization placing the ad earlier in the election season.

The Court's Decision, authored by The Chief Justice, holds that if an ad can be interpreted as a legitimate issue ad, then it should be allowed. Thus, the court tries to error on the side of free speech.

Justice Scalia's concurring opinion is the real meat of the decision. The Justice, joined by Justices Kennedy and Thomas, argues that neither the principle decision's logic nor the dissenter's logic hold. This opinion would reverse a previous decision and declare unconstitutional the applicable chapter of McCain-Feingold.

In the end, the case is undermined by the failure to link the behaviors to actual or potential corruption. It is never clear where the threat is. The dissenters would broadly constrain the content of issue ads. Most reasonable people would think it perfectly acceptable for an issue ad to encourage people to register their opinions with their elected representatives. It seems ludicrous to insist that the ad, if run within the 30 days prior to the election, cannot provide the name and contact information for those representatives. It also seems ludicrous to insist that an organization give up its right to issue advocacy because it engaged in permissable electioneering prior to the 30 day period. This is especially true given that absolute lack of evidence for potential corruption.

I forecast that in the near future the court will have to revisit this issue. If the court constructionists' are reinforced, I predict Justice Scalia's views will carry the day. If the court moves back to the left, the Dissenter's will reassert the flawed McConnell logic.

The decision thus illustrates the importance of the 2008 election cycle.