December 10, 2003
WILLIAM F. BUCKLEY, ARISE:
McConnell, U.S. Senator et al., against Federal Election Commission, et al. (U.S. Supreme Court, Justice Stevens and Justice O'Connor, 12/10/2003; via Rick Hasen)
Opinion of the Court We have repeatedly sustained legislation aimed at "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin v. Michigan Chamber of Commerce, 494 U.S. (1990), at 660...
In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy....
In short: a previous law banning express advocacy of a candidate was upheld, and therefore we must uphold a ban on issue advocacy, because banning issue advocacy is no more offensive than banning express advocacy.
Even shorter: Once we slip, we have an obligation to slip all the way to the bottom of the slope.
Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications.” Virginia v. Hicks, 539 U. S. (2003)
In short: "Congress shall make no law abridging the freedom of speech" means that Congress may pass no law abridging freedom of "protected" speech, unless it simultaneously bans enough "non-protected" speech to inoculate the whole law from judicial scrutiny.
Even shorter: If we picked 9 names randomly from the Boston phone book, we'd get better judging than this.
You know, not to toot my own horn, but I am available for an Article III slot.
Toot.
Posted by: Chris at December 10, 2003 07:29 PMAre you in Boston? Only Bostonians will do.
Posted by: pj at December 10, 2003 08:02 PMHeck, forget it. That's one of the three cities I ruled out categorically when job searching many moons ago.
(San Fran and Seattle are the others.)
Posted by: Chris at December 10, 2003 08:40 PMThe ruling remains in the abstract for now, since specific cases of free speech coming up against McCain-Feingold haven't been filed yet, and odds are the public won't have much sympathy for any potential violations at the national level, despite it working against 216 years of constitutional law. But wait until a small-town/state violation of the law starts working its way through the court system and see what happens (especially with the press if it happens to be a liberal private voice inveighing against a conservative politician 60 days before an election.
Posted by: John at December 10, 2003 09:07 PMIf you had said Omaha I would have accepted it. Not Boston.
Posted by: Robert Schwartz at December 12, 2003 01:05 AMWell, in the interests of getting this Constitution Amendment through, I guess we can compromise on Omaha.
Posted by: pj at December 12, 2003 07:44 AM