First off, I want to encourage our readers to read the actual opinion. If you want to get a good idea about the arguments involved in the campaign finance reform issue, the majority opinion, concurrences, and dissent all provide a good representation of the different sides of the argument.

Here’s a little about the case. It is a follow-up case to McConnell v. FEC. McConnell decided that McCain-Feingold was valid just from a reading of the language, but left open the question of whether in actual application it would still be constitutional (or in legal terms, an “as applied challenge”). FEC v. Wisconsin Right to Life resolves the question of the as applied challenge. Chief Justice Roberts, the majority author, decided that McCain Feingold is unconstitutional as applied to the issue ads by WRTL without reversing McConnell. Justice Alito concurred, noting that he would be open to overruling McConnell depending on the effect of the WRTL case’s effect. Justices Scalia, Thomas, and Kennedy concurred in the result, but stated that McConnell should be overruled. Justices Souter, Stevens, Breyer, and Ginsburg dissented.

In a sense this is both a small and a big win for free speech. It’s a small win because the actual outcome is fairly narrow. This follows the general judicial philosophy of Justices Roberts and Alito, who generally have been deciding cases on narrow grounds rather than making grander pronouncements. Roberts’ declination to overrule McConnell makes this holding of this case fairly narrow, dealing only with what is and what isn’t an issue ad. Much like the partial-birth abortion case, Gonzales v. Carhart, the narrow grounds upon which the case was decided tempers the ability of the winning side to make any grand pronouncements as to the effect of the case.

On the other hand, this is a big win for McCain-Feingold’s opponents. The test set forth by Roberts is exacting. It will make McCain-Feingold essentially toothless for any political ad other than those expressly advocating the election or defeat of a candidate. Additionally, WRTL paves the way for further erosion and the possible overturning of McCain-Feingold in its entirety. Three Justices already openly advocate it. Alito signaled that he could be convinced to do so. Roberts is more cryptic, but it seems likely at the least that he would also be willing to overturn it. Such a reversal would be a huge win for such a conservative cause as the First Amendment. (Note that usually the first amendment is a clarion call for liberals defending the worst human behavior – i.e. “bong hits for Jesus - while suppressing its intended purpose of promoting political speech).

McCain (and possibly Fred Thompson) should be embarrassed for supporting such a blatant infringement of the First Amendment. While his concern with political corruption is laudable, silencing political speech is directly prohibited by the First Amendment, and certainly is not the method to avoid corruption. That McCain would choose to sacrifice free speech for the sake of political candidates is indefensible. Roberts’ judicious approach to the law leaves McCain-Feingold still alive but on life-support. Had Justice Scalia been writing the majority opinion, he would have left nothing of McCain-Feingold’s restrictions on speech. Indeed, as Scalia notes in his concurrence:

There is wondrous irony to be found in both the genesis and the consequences of [McCain-Feingold]. In the fact that the institutions it was designed to muzzle—unions and nearly all manner of corporations—for all the “corrosive and distorting effects” of their “immense aggregations of wealth,” were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including incumbents). In fact the effect of [McCain-Feingold] has been to concentrate more political power in the hands of the country’s wealthiest individuals and their so-called 527organizations, unregulated by §203. (In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to 527s.) And, in fact, while these wealthy individuals dominate political discourse, it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled.

Score this a win for free speech and Romney.

Labels: mccain-feingold, Supreme Court, Wisconsin Right to Life

...at least in part. The court, split 5-4, in upholding an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.

I haven't seen the opinion yet, but will have my take as soon as I can.

Labels: mccain-feingold, Supreme Court

Marc Ambinder over at the Atlantic has a small preview of what will be an important decision from the Supreme Court in Wisconsin Right to Life v. The Federal Election Commission. The case challenges McCain-Feingold's restrictions on speech. Wisconsin Right to Life was represented by one James Bopp. Most of us Romney followers know him from his advising role to Governor Romney, but in the conservative movement he is most prominently known for his role in arguing conservative causes before the Supreme Court.

Obviously this decision will have political implications (that Ambinder lays out nicely). At the basic level, a win for WRTL would be a win for Romney. A win for the FEC would be a win for McCain and possibly Thompson, who was also a big part of passing McCain-Feingold. However, if the FEC wins this case, I can't see that McCain will suddenly have a boost in popularity. Conservatives are decidedly against McCain-Feingold and upholding the constitutionality of the law would not suddenly sway conservative votes.

The decision is supposed to be out today and I will have my take as soon as I can read it.

Labels: james bopp, John McCain, mccain-feingold, Supreme Court

“And my fear is that McCain-Kennedy would do to immigration what McCain-Feingold has done to campaign finance and money in politics, and that's bad.”
- Mitt Romney, Republican Presidential Debate in South Carolina, May 15, 2007

Of course we know what happened to money in politics after McCain-Feingold: it increased instead of decreasing. We can only speculate the extent of damage that would be caused by the immigration reform that McCain and others proposed yesterday. However, my intent is not to debate the merits of the bill, but to discuss McCain’s approach to solving problems.

When asked at the debate about McCain-Feingold and McCain-Kennedy, McCain had this answer:

SEN. MCCAIN: Well, the first issues you mentioned have to do with bipartisanship, have to do with reaching across the aisle and work for the good of the American people. That's what I intend to do. That's what leadership is all about. And the reason why congressional approval ratings -- I saw at 28 percent as -- and you get down to blood relatives and paid staffers when you get down that low -- (laughter) -- is because they want us to work together, they want us to reach across the aisle on issues that are important to America.

Apparently McCain gives us this formula: Bipartisanship = Leadership. However, this formulation seems dubious at best. To McCain, any answer that passes, with both sides agreeing, is the right answer. But consensus is not leadership. In fact leadership may be just the opposite. It would seem that McCain would understand this in his defense of the Iraq war. What is his defense of the Iraq war, then, if it fails his bipartisanship = leadership formula? His position does not garner bipartisan support. Does that make his support for the Iraq war wrong, or against American interests? Certainly not.

McCain’s propensity to sell Republican values and principles for the pottage of bipartisanship is why we should avoid him. His latest immigration proposal only reaffirms the need for someone who, even in the toughest of times and places has stood against the tide of liberal ideals. After listing the fights he’s led for life, traditional marriage, English immersion in schools, the death penalty, and abstinence education, Romney summed up true leadership:

“In the toughest of states, I made the toughest decisions and did what was right for America.” - Mitt Romney, Republican Presidential Debate in South Carolina, May 15, 2007

Labels: Immigration, John McCain, Leadership, mccain-feingold

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Here's Governor Romney on the key failures of McCain-Feingold:

"As I have traveled the country in connection with my campaign for President, I have been inspired by the commitment of countless Americans to shaping the future of America's political system. Their commitment takes many different forms, from distributing literature, to attending a campaign rally, to contributing money to an individual candidate. I applaud this involvement, even if it is not supportive of my candidacy. An informed and active citizenry is vital to the long-term health of our political system."

"I have not spent a career in politics, but I know enough about the laws of this country, and the way Washington works, to understand that the McCain-Feingold law is riddled with shortcomings.

"Let's start with something basic: the American people should be free to advocate for their candidates and their positions without burdensome limitations."

"The American people should be able to exercise their First Amendment rights without having to think about hiring a lawyer. But that is the direction in which we are headed. In 2004, the non-profit group Wisconsin Right to Life wanted to run grassroots radio and television ads urging people in the state to contact their Senators (which the ads mentioned by name) and ask them to oppose the ongoing filibusters of President Bush's judicial nominees. A provision in McCain-Feingold, however, was used to argue that the ads were illegal. Rendering a verdict on what constitutes acceptable political speech is something for voters – not judges – to decide."

"We step into dangerous territory when politicians start eviscerating our fundamental freedoms in the name of amorphous principles, like campaign finance reform. If I am elected President, a top priority will be to push for the repeal of this deeply-flawed measure, and restore the full freedom of political participation and expression to the American people."

Labels: John McCain, mccain-feingold