The Supremes -- Mostly but Not Entirely Bad News

By Wendy Kaminer         

         Civil libertarians have good reason to mourn the Supreme Court’s latest rulings eviscerating student speech rights and empowering the president to divert public funds to sectarian religious groups.  In the wake of the Court’s earlier decision this term upholding bans on second trimester abortions, these cases confirm that the Court is now pretty firmly under the control of authoritarian (not libertarian) conservatives.  Occasionally the conservative majority will rule in favor of liberty; expect it to do so when the liberty interests align with the interests or biases of conservatives, as they do in debates about campaign finance restrictions.  
        The “liberal” wing of the Court, which in saner times would be described as centrist (with the possible exception of Justice Ginsberg,) dissented from Chief Justice Robert’s majority opinion in the campaign finance case, which limited a provision of the McCain Feingold law that greatly restricted the political speech of corporations and unions.  Naturally, many liberals and other reformers intent on somehow divorcing money from politics (an effort akin to trying to divorce teenagers from sex,) considered this ruling another defeat.

        But McCain Feingold is an illiberal bill that restricts much more than the speech of presumptively “evil” corporate speakers.  The provision struck down by the Court also applied to not for profit advocacy groups, like the NRA, NARAL, and the ACLU, and it prohibited these groups, as well as corporations and unions, from using general funds to broadcast “electioneering communications” that merely mentioned a candidate’s name 30 days before a federal primary and 60 days before a general election.  What was an electioneering communication under McCain Feingold?  It included “issue ads,” like an ad by a gay rights group that said, “Call Congressman X and tell him how you feel about a constitutional amendment prohibiting gay marriage.” 

        It should be obvious that this restriction on “issue ads” was an unconstitutional restriction on core political speech, which the Court rightly rejected.  And, surely, reformers interested in good government should vigorously oppose laws like McCain Feingold that criminalize ads criticizing members of Congress (or their positions on public issues) during their re-election campaigns.  (No one should be surprised that a campaign law enacted by incumbent legislators benefits incumbents.) But I suspect that a lot of people reflexively support campaign finance restrictions in the mistaken belief that they simply muzzle fat cats bent on corrupting the process.  In fact, they muzzle ordinary citizens (as former FEC chair Bradley Smith explains in the WSJ.) And, in some ways, they enhance rather than restrict the advantages of the ultra-rich in election campaigns, as the proliferation of 527's has shown.
        Restrictions on issue ads and similar “reforms” also translate into law the familiar, lamentable, de facto principle that a free press belongs to those who own it.  As many of us have observed, McCain Feingold potentially amplifies the voices of press titans, like Arthur Sulzberger and Rupert Murdoch, who retain their rights to publish editorials discussing issues or directly attacking candidates whenever they choose, while advocacy groups, representing millions of individual citizens who don’t own newspapers or radio stations, effectively lose the right to purchase broadcast time for similar purposes.  But, you’d never know this from reading the New York Times editorial page; in criticizing the campaign finance decision, the Times accused the Court of “magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens,” resorting to precisely the kind of misleading sloganeering that laws like McCain Feingold are supposed to restrict.
        So while the Court is not consistent or intellectually honest in its defense of free speech, as the rulings this week show, neither are the New York Times and the many liberals who support McCain Feingold (sometimes without understanding its reach.)  This Supreme Court will hand liberals and civil libertarians many more defeats in the coming years; let’s make the most of occasional victories.

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