Justice Stephen Breyer: “This isn't the First Amendment totally on one side. Isn't this ... a case where the courts held that there are very significant constitutional interests on both sides of the equation, which is what makes this kind of thing difficult... . I’m just suggesting why a pure First Amendment test doesn't necessarily answer the question and why we've upheld McCain-Feingold.”
Breyer was not the only justice on the moderate-to-liberal wing of the Court to indicate support for the McCain-Feingold law in the face of a First Amendment challenge yesterday. Justices David Souter and John Paul Stevens also seemed ready to uphold the ban on certain electioneering communications in the run-up to elections. Justice Ruth Bader Ginsburg made no revealing comments but is expected to vote in favor of the law.
But with speech-sympathetic comments from Roberts and Scalia, as well as skeptical questioning of defenders of the law from Justice Samuel Alito Jr., it seemed possible to think that the Court’s embrace of campaign-finance regulations in the face of free-speech concerns is about to weaken. Justice Anthony Kennedy’s questioning was ambiguous, and Justice Clarence Thomas as usual was silent — though he is a solid vote against any speech-limiting campaign-finance laws.
The consolidated case before the Court yesterday, Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, is an “as-applied” challenge to a part of the law that forbids “electioneering communications” that are directly funded by corporations and unions in the period 30 days before primary elections and 60 days before general elections. More than three years ago, the Court, with now-retired Justice Sandra Day O’Connor in the majority, upheld the law on its face in McConnell v. FEC, but the justices left the door open to challenges once the law took effect.
The Wisconsin group sued the FEC over ads it wanted to broadcast in 2004, questioning the position taken by the state’s two U.S. senators on filibustering efforts to block President George W. Bush’s judicial nominees. Because one of the senators, Russ Feingold, was facing re-election, the ads would have violated the law if aired. The lower court, focusing on the words of the ads, found that banning them would violate the First Amendment.
As Scalia’s comments suggest, justices seemed most concerned about how to regulate election-oriented advertising that Congress wanted to insulate from special-interest spending, without at the same time censoring genuine grass-roots speech aimed at affecting public policy. Reform advocates claim that interest groups are seeking an opening for “sham issue ads” which seem to be about policy questions but in fact are aimed at electing or defeating a particular candidate.
Scalia and Kennedy suggested in different ways that the ban on issue advertising would squelch political speech at the precise time when it might be most effective in changing policy.
Solicitor General Paul Clement, who argued on behalf of the FEC, began to suggest that a group with a “pure heart” and no plans to affect an election could assert in court that its ads should not be covered by the law. But Scalia reacted angrily. “This is the First Amendment! We don’t make people guess whether their speech is going to be allowed by Big Brother or not.”
Later, Alito asked Clement how long “the blackout period” would be for issue advertising before the 2008 election. Clement began to answer with the 30- and 60-day features of the law. But Scalia, apparently referring to overlapping blackout periods in media markets that serve several states, interrupted, “It could be as long as 200 days; isn’t that correct?”
Former Solicitor General Seth Waxman, representing senators who defended the law, stressed that the law does not ban corporate pre-election ads altogether. It merely requires that they be paid for by regulated political action committees — rather than from direct union or corporate funds.
But Alito, referring to briefs filed by a broad range of advocacy organizations, interjected that “so many advocacy groups ... say this is really impractical.” The groups claim it is cumbersome to have to create PACs and funnel their advertising through such committees.
Waxman responded by criticizing one of those groups, the American Civil Liberties Union. The ACLU complained about the ban but, he said, is not harmed by it because the ACLU never mentions candidates by name in its advertising.
Justices who do not usually defend the ACLU responded, “Just because the ACLU doesn’t do that doesn’t seem particularly pertinent to me,” said Roberts. And Scalia asked, “Why pick on the ACLU?”
Justices Breyer and Souter, past supporters of the McCain-Feingold law, passionately defended the ban in their questioning of James Bopp Jr., who argued on behalf of the Wisconsin group.
Bopp argued that the law poses a “dilemma” for advocacy groups “because we have Congress in session during the blackout periods, voting on items. And we have in the First Amendment one of the four (sic) indispensable freedoms, your right to petition the government.”
But Breyer wanted none of it. He argued that the Court had already considered the arguments against the ban and upheld it anyway. “It’s sort of for me déjà vu all over again,” Breyer said, adding that “If we agree with you in this case, goodbye McCain-Feingold.” None of the other justices seemed as concerned as Breyer about seeing the law — or a significant part of it — leave the political arena.