Political speech: yes
WHEN CONGRESS, in the McCain-Feingold law, rightly banned unregulated soft-money contributions to political parties, legitimate political speech suffered collateral damage in the form of a ban on so-called phony issue ads paid for by unions and corporations and aired close to an election. On Monday, the Supreme Court went a good way -- but not far enough -- toward repairing the damage. By a 5-4 vote, the court ruled that a Wisconsin antiabortion group had a 1st Amendment right to broadcast advertisements in 2004 pressuring two Democratic senators -- only one of whom was up for reelection -- to allow confirmation votes on President Bush’s judicial nominees. The ruling upholds a decision by a lower court that the ads were not phony issue ads.
Monday’s decision addresses what even some supporters of the law recognized as its constitutional Achilles’ heel. Congress was concerned that some issue ads were veiled ads for or against a candidate -- as they were. But in creating a net that would remove phony issue ads from the airwaves, McCain-Feingold arguably hauled in genuine issue ads -- those designed to affect a legislator’s vote, not to reelect (or de-elect) him. Moreover, as the Wisconsin case shows, a given advertisement can be a hybrid of an issue ad and an election ad. And that’s not the only problem. Free expression is chilled whenever the government -- in the form of the Federal Election Commission or the federal courts -- polices the expression of political opinions.
Chief Justice John G. Roberts Jr., in an opinion joined in full by Justice Samuel A. Alito Jr., offered this test: An issue ad is phony (and subject to a ban) if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Even if the courts erred on the side of free expression, as Roberts would like them to do, this is a green light for case-by-case challenges. A cleaner alternative is offered by the other justices in the majority. Antonin Scalia, joined by Clarence Thomas and Anthony M. Kennedy, would overrule the court’s 2003 holding that the issue-ad provisions of McCain-Feingold were constitutional on their face.
It’s not often that Scalia has the better of a constitutional argument, but he does here. This newspaper, which is owned by a corporation, prizes its freedom to endorse or criticize a candidate right up to election day. We see this as our 1st Amendment right, not a favor bestowed by Congress in excluding newspaper editorials from the ban on “electioneering communications.” We can hardly begrudge others the same right.