The central importance of Supreme Court appointments among the powers of a president was reinforced yesterday when the U.S. Supreme Court issued a somewhat subtle but very important First Amendment ruling. To a great extent it sets political advertising by independent organizations free from sweeping restrictions enacted, and upheld by the high court, just a few years back.
The case involved a Wisconsin anti-abortion group and a set of so-called issue ads it broadcast shortly before the 2004 election. Sen. Russ Feingold was running for re-election that fall and he was mentioned in the ads.
Those ads were a crime under the dramatic 2002 campaign finance reform law popularly known as McCain-Feingold. Perhaps the most remarkable provision of that law prohibited independent ads — those sponsored by advocacy groups, corporations, unions and so on — within 60 days of an election if they could be construed as favoring or opposing the election of a federal candidate.
Three veteran members of the court — Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy — argued that the court should have reversed its own earlier ruling and declared all of the law’s restrictions on independent ads unconstitutional.
But those three went along with the more incremental judgment of the court’s newest members, George W. Bush appointees John Roberts and Samuel Alito. The ruling can therefore fairly be seen a sign of what Bush has wrought on the court.
Roberts and Alito stuck with a distinction the court has long made between “express advocacy” ads — which say things like “Elect Jones” or “Dump Smith” — and “issue ads” that don’t try to influence voter behavior so plainly.
But Roberts and Alito rejected language in the 2002 law that said issue ads which even mention a candidate for federal office are outlawed as the “functional equivalent” of express advocacy ads.
The new ruling imposes a new standard that may effectively neutralize McCain-Feingold’s attempt to rein in attack ads masquerading as issue ads. The standard says that an issue ad cannot constitutionally be prohibited unless there is no reasonable interpretation that could see the ad as anything but a disguised effort to influence the election outcome.
That’s a pretty big “unless” and would seem to restore spacious constitutional protection to issue ads, even if they have the effect of influencing voters but good.
The dissenters thought so, writing: “After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.” In the minority were Justices David Souter, John Paul Stevens, Ruth Bader Ginsburg and Steven Breyer.
Now, whether loosening these restrictions on the political debate of independent organizations is a bad thing or a good thing is itself debatable. I myself have never been able to understand why journalists and media companies should be able to mention candidates in any way they please right up to election day if everybody else can’t.
Anyhow, the rules on political speech never seem to get simpler, and the court has changed the landscape yet again.