High court gets another chance to review bad law
High court gets another chance to review bad law
By Daniel Weintraub -
Published 12:00 am PDT Thursday, May 3, 2007
The U.S. Supreme Court, which only four years ago upheld a law Congress passed to limit political speech in America, is about to revisit one of the worst aspects of that ruling.
The court last month heard oral arguments in a Wisconsin case that illustrates what folly it is for government officials to try to decide what kind of political speech is acceptable and what kind should be outlawed.
Known as McCain-Feingold for its bipartisan Senate authors -- Sen. John McCain, R-Ariz., and Sen. Russell Feingold, D-Wis. -- the law bans labor unions and corporations, including nonprofits, from broadcasting campaign commercials within 60 days of a general election and 30 days before a primary.
Those entities are already banned from contributing directly to politicians under a 30-year-old federal law meant to prevent members of Congress from being corrupted by political donations. McCain-Feingold takes that concept to another level, suggesting that the government should act not only to prevent corruption but as a referee in the political debate, deciding who can speak, about what and when.
The court upheld the campaign finance law in a 5-4 decision in 2003. But at the time, the justices also said it was possible that some groups seeking to influence congressional action, not elections, might be inadvertently swept up in the ban on pre-election advertising. The court said those groups should have the ability to challenge any ruling that prevented them from getting their message out. The Wisconsin case now before the court does just that.
Wisconsin Right to Life, an anti-abortion group, sought to run radio advertisements in 2004 informing the state's voters that the Senate was using a filibuster to block President Bush's judicial appointments. The ads urged listeners to contact their two senators, Feingold and Herbert Kohl, and tell them to oppose the filibuster. Feingold was running for reelection that year, and while the ads didn't mention his campaign or encourage voters to oppose him, they included an Internet address that led to a site that criticized Feingold directly.
That was enough to prompt intervention from the Federal Elections Commission, which ruled that the ads violated federal law. The anti-abortion group sued and won in the lower courts. The FEC appealed and now the Supreme Court is reviewing the decision.
The case has drawn widespread interest beyond just those who care about abortion or federal judges. The National Rifle Association, the AFL-CIO and the American Civil Liberties Union all filed friend-of-the-court briefs on the side of Wisconsin Right to Life. The 30-day limit before primaries applies to the presidential campaign and means that national advertising by the affected groups is essentially banned for a year before each presidential election.
The ACLU argued that any issue ad paid for by a nonprofit funded entirely by individuals should be exempt from regulation. But recognizing that the court might not want to go that far in rolling back its previous ruling, the organization argued that the test the lower court applied in the Wisconsin case was a second-best alternative because it provided clear guidance on what would and would not be allowed.
That test asked five questions about the ad:
• Does the ad describe a legislative issue pending or likely to be pending soon?
• Does it refer to the position of a named candidate?
• Does it ask the listener to do anything other than contact the candidate?
• Does it promote, attack, support or oppose the candidate?
• Does it refer to the upcoming election or political party of the candidate?
Given what the law says and the previous Supreme Court ruling, the district court's questions represented a good-faith effort to find justice in that case. But when you consider that the Constitution says Congress "shall make no law" abridging freedom of speech, it's hard to figure how McCain-Feingold, even as applied with those questions, does not violate the First Amendment.
The FEC, meanwhile, argued before the Supreme Court that those five questions are not sufficient because they are limited to the "four corners" of the ad and don't consider the context in which it is aired. Simply looking at what the ad says, the commission argued, does not always tell you what it means to people who hear it or see it.
But the FEC's approach would require a subjective analysis of every ad to divine its meaning. That would leave groups seeking to communicate a political message with very little guidance about what might be legal and what might violate the law.
"This is the First Amendment," Justice Antonin Scalia said during oral arguments. "We don't make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line. ... And you're not giving us any."
Scalia was in the minority when the court upheld McCain-Feingold. If the court's newest member, Samuel A. Alito, agrees with him, at least a semblance of common sense might return to the nation's campaign finance laws. These sorts of rules only limit speech and obscure accountability. The best approach for those worried about money in politics is always maximum and immediate disclosure.