Restored: Free speech during elections

The Supreme Court just concluded its October 2006 term, and in a long-awaited decision, took the first step in restoring political free speech.

The Supreme Court began dismantling the Bipartisan Campaign Reform Act of 2002, or BCRA – great news for the First Amendment.

You’ll remember that for several years the issue of Democrats filibustering President Bush’s nominees to the federal courts was a hot political issue. Whole campaigns were centered on it. And plenty of conservative groups were engaged in that fight.

Wisconsin Right to Life, or WRTL, is that state’s affiliate of National Right to Life, and one of the senators sustaining the filibuster was Wisconsin’s liberal Sen. Russ Feingold. WRTL wanted to air ads in 2004 informing voters of the importance of ending the filibuster and telling them to call the senator to voice their opposition. The ad did not blame Sen. Feingold for the filibuster. It just told voters to ask the senator to support an up-or-down vote on judicial nominations.

BCRA creates “blackout” periods during which labor unions and corporations (including trade associations and issue groups like WRTL) cannot run radio and TV ads that might impact the election of a candidate for federal office. These blackout periods take place within 30 days of a primary election and 60 days of a general election. The media is not subject to these blackout periods, however, and can continue to praise or criticize candidates while others are precluded from doing so.

Sen. Feingold was on the ballot in 2004, and these ads were scheduled to run during the blackout period created by BCRA. So the Federal Election Commission barred the ads, calling them the “functional equivalent” of election ads, and therefore prohibited by BCRA during that time frame.

WRTL sued. And in that case, FEC v. Wisconsin Right to Life, a 5-4 Supreme Court held that BCRA is unconstitutional as applied to ads that mention a candidate’s name but do not call for the election or defeat of that candidate. In this case the court was asked to draw a line between speech in the media that could be restricted and speech that cannot. Chief Justice Roberts, writing the principal opinion declared, “In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”

Four other justices agreed with the chief justice on this outcome, and the ban on issue ads was struck down.

This is quite a change since the court last took up this issue. In the 2003 case of McConnell v. FEC, in which the Supreme Court considered a challenge to the constitutionality of BCRA, the panel held that BCRA’s ad restrictions were acceptable to the Free Speech Clause of the First Amendment.

What happened? One thing that happened was that Justice Sandra Day O’Connor retired and Justice Samuel Alito took her seat.

Ironically, it was because of a judicial nominee whose nomination was not filibustered – Justice Alito – that now we can all publicly call on our senators not to filibuster future nominees.

In a very encouraging sign for the future of the new Supreme Court, Justice Kennedy – who is generally a judicial moderate – took a more conservative position than Chief Justice Roberts or even Justice Alito. Justice Kennedy, along with Justice Thomas, signed onto a concurring opinion by Justice Scalia. Writing for all three of them, Justice Scalia stated they should go further in this case, and should strike down entirely the BCRA provision creating blackout periods by overturning that part of the McConnell case. Scalia called the line between issue ads and election ads being drawn by his conservative colleagues to be like “a line drawn in the sand on a windy day,” and said they should just declare a broad rule that all such political ads are constitutional whether they are election ads or not.

Chief Justice Roberts and Justice Alito are careful to avoid issues that are not before the court. Since election ads were not at issue here, they declined to discuss the matter, but suggested they would be willing to revisit McConnell’s holding on election ads if the right case was offered to the court.

The rule of adhering to precedent in law is called stare decisis, and it requires special justification to overturn a precedent. The decision in the WRTL case indicates the new court’s willingness to revisit even recent decisions when appropriate. That’s good news for those who have been frustrated by the creeping judicial activism responsible for advancing a leftist social agenda in America for many years now.

It’s not the business of the Supreme Court to make social policy judgments, and this decision is a good sign that a majority of the new court accepts that fact.

The Supreme Court has taken a big step toward restoring the First Amendment given to us by our Founding Fathers. The paramount reason for the First Amendment is to allow citizens to hold government accountable. The chief rationale for the Free Speech Clause is to allow ordinary people to speak out and inform the public.

And because we have the freedom to speak out, we also have a duty to do so. The 2008 presidential elections are coming, and we all must make our voices heard.

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