Robb: Court needs to reread Constitutionby Robert Robb on Jul. 02, 2007, under Opinion
The U.S. Supreme Court expanded the free speech rights of some political associations, but only for those willing to risk going to jail to exercise them.
Somehow, I don’t think that’s what the founders had in mind when they wrote that “Congress shall make no law . . . abridging the freedom of speech.”
At issue was a provision in the McCain-Feingold campaign finance legislation prohibiting television and radio ads that mention federal candidates before elections unless paid for with money subject to federal limits.
As a practical matter, this meant that trade associations, unions and issue advocacy groups couldn’t pay for such ads out of their general treasuries. They would have to form PACs and pay for them out of smaller contributions.
In 2003, the Supreme Court largely upheld McCain-Feingold on the basis that Congress could act to protect elections from the influence of wealth – a free speech exception not found in the Constitution itself.
The court found the provision banning certain broadcast ads was not unconstitutional per se, because most of the ads running before elections were intended to influence their outcome rather than about issues pending before Congress.
It, however, left open the possibility that McCain-Feingold could be held unconstitutional as applied to specific issue ads.
This was always a curious and indefensible distinction. The notion that the First Amendment protects speech about candidates less than it protects speech about issues has utterly no foundation or logic to it.
In 2004, the Wisconsin Right to Life organization wanted to run television ads urging viewers to contact Wisconsin’s U.S. senators about filibustering judges during the prohibited period. One of those senators, Russ Feingold ironically enough, was up for re-election.
In last week’s decision, two justices said that the McCain-Feingold ban was unconstitutional as applied to these ads; three justices said the ban was unconstitutional per se in all cases; and four justices said the ban was constitutional and forbid these particular ads.
In the curious math of judicial decision-making, although the smallest faction, the views of the two justices are now the law of the land. In the words of Chief Justice John Roberts, who wrote the controlling opinion, the ban now applies only to ads that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
But who decides that? And when?
Violating this particular provision of McCain-Feingold can be a felony.
Courts aren’t in the business of providing advisory opinions. So, the only option for those wanting to exercise this expanded right to communicate during elections is to run the ads and see if the Federal Elections Commission takes enforcement action and whether the courts determine that there is a reasonable alternative interpretation of them.
That’s an inherently subjective judgment. In fact, in this very case, only two justices actually found that there was a reasonable alternative interpretation. Four justices said there wasn’t one, and three said it didn’t matter.
No justice attempted to explain how such distinctions and subjective censorship of the content of political ads could be reconciled with the plain language of the First Amendment.
In fact, the dissent written by Justice David Souter was quite revealing regarding this point. He wrote that this particular provision of McCain-Feingold was constitutional because it “is not a ban on speech.”
That’s because the same message could be delivered through newspaper advertising, the Internet or direct mail, or on television and radio by a PAC.
The Constitution, however, doesn’t prohibit Congress from “banning” speech; it prohibits Congress from “abridging” speech, which Webster’s defines as to “diminish” or “reduce in scope.”
The explicit purpose of McCain-Feingold was to reduce political speech, to prevent some people, organized in certain ways, from saying certain things at certain times.
In an almost quaint move, toward the end of his opinion, Roberts actually bothers to quote the constitutional provision supposedly being construed.
Someday, perhaps, the court will actually apply the language as written.
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Robert Robb is a columnist for The Arizona Republic.