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Wisconsin Right to Speech

by Ryan Sager
Thu, 26 Apr 2007 at 1:09 AM
updated Thu, 26 Apr 2007 at 1:23 AM

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Man, is the Internet era great for nerds. Wednesday morning's oral arguments in the crucial Wisconsin Right to Life v. FEC case (which deals with "as applied" challenges to McCain-Feingold's notorious politician-criticism — er, I mean, "sham-issue-advertising" — ban) ... already online at the Supreme Court Web site (PDF).

What's important here, and I think it's evident throughout the transcript, is that there's no clear way to tell an issue ad that happens to mention a candidate's name from an ad that pretends to be about an issue, but which is really designed to elect of defeat a candidate.

Now, of course, any friend of the First Amendment would have to protest that either should be perfectly legal. Trying to elect and/or defeat candidates for federal office is why we have freedom of speech in the first place. It's sort of the whole point.

But being able to tell the difference between the two is crucial, under current campaign-finance jurisprudence, because if you can't set up a clear test — well, then the entire provision of McCain-Feingold will have to be invalidated on its face, eviscerating the law and overturning the Supreme Court's own (in my humble view, incorrect) decision of two years ago in McConnell v. FEC.

Here's hoping the court finds the task hopeless. So far, Justices Thomas, Scalia, and Kennedy already believe McConnell was decided wrongly. Chief Justice Roberts seems to agree. The question-mark is Justice Alito; but he seems pretty likely to come down on the side of free speech as well.

The only question, it seems to me, is how quickly the court wants to move to undo the damage that has been done to free speech in America since 2002. Mr. Roberts is all about restraint, so I'd wager against the court using this case to overturn McConnell. But a man can hope — and that's a lot more than any of us could do on this issue just a couple short years ago.

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