Where do Alito and Roberts stand on free political speech?
Friday, December 29, 2006 12:01 a.m. EST
A federal court decision last week upheld the right of citizens to petition their government--a right taken for granted before the 2002 McCain-Feingold campaign-finance law codified speech restrictions. The ruling is overly narrow but welcome all the same. And if it's appealed, as expected, the Supreme Court will have another chance to weigh in on Congress's efforts to chip away at First Amendment free-speech guarantees in the name of "reform."
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Last week a federal court did just that and reversed course. In a 2-1 opinion, the court held that certain "issue" ads are permissible during campaign season, even if they (gasp) refer to candidates seeking re-election. And while we agree with the result, the justification for the court's finding is still troublesome and revealing of McCain-Feingold's assault on political speech.
The ads are acceptable, said the court, because they urge voters to call both Senators instead of just one, "do not comment on either Senator's past or current position regarding \[filibusters\]" and don't "reveal either Senator's thinking on the issue." In other words, campaign finance "reform" has left us with a system that allows corporations, unions and other special interest groups to petition government on issues of public importance so long as they don't expressly advocate the election or defeat of an actual politician.
The good news is that the Federal Election Commission is likely to appeal to the Supreme Court, which will get a chance to reconsider its muddled rulings on campaign funding and political speech. Since the 5-4 McConnell decision upholding the campaign finance law, Chief Justice John Roberts and Justice Samuel Alito have joined the High Court. It's not certain how far either would move in a deregulatory direction, but it's encouraging that both voted with the 6-3 majority in last term's Randell v. Sorrell decision, which struck down Vermont's expenditure and contribution limits.
McCain-Feingold's backers claimed the law would rein in large donors and facilitate political campaigns that are less expensive, less negative and less influenced by special interests. If that nirvana has arrived, we haven't noticed. Proponents also promised that reform wouldn't hurt the ability of grassroots organizations to run ads that inform the public and hold politicians accountable. The folks at Wisconsin Right to Life beg to differ.
Perhaps the lesson is that limiting political speech isn't the cure for whatever supposedly ails the electoral system. Let's hope the Supreme Court seizes this opportunity to start dismantling the speech-regulation regime known as McCain-Feingold.
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