A Victory for the Right and the First Amendment

In 2004, the Wisconsin Right to Life (WRTL) organization wanted to run a television ad that criticized the fact that some Senators were using “filibuster delay tactics” to prevent federal judicial nominees from coming to an up-or-down vote. The ad concluded with the suggestion to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” This ad was to run during the 30 day period before a federal election. The Bipartisan Campaign Reform Act (BCRA) proscribed ads that refer to a candidate within this period.

Recognizing the potential problem, WRTL applied for injunctive relief claiming its First Amendment rights were being violated. The relief was denied, but ultimately the WRTL was able to present its case before the US Supreme Court.

This was not the first time that BCRA had been challenged. In McConnell v. FEC, decided when Justice Sandra Day O’Connor represented a swing vote on the Court, the Court allowed the prohibition against “electioneering” ads or their “functional equivalent.” The Court believed that the mention of a candidate’s name made any ad the functional equivalent of electioneering and not “expressed advocacy” of a position. Expressed advocacy is still permitted.

In WRTL v. FEC , the Court led by Chief Justice John Roberts, narrowed the McConnell decision. It found in favor of WRTL, arguing that the strict scrutiny required in First Amendment cases was not met by the “functional equivalence” test. Any doubt must be decided in favor of free speech rights. An ad could be considered to be engaged in electioneering “only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate.”

Although the Court saw no reason offered by this particular case to re-examine McConnell in full, it suggested that it might do so sometime in the future. In Roberts’ concluding paragraph of the majority decision in WRTL v. FEC, he argued that the “Framers’ actual words put these cases in proper perspective…when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that `Congress shall make no law … abridging the freedom of speech’ demands at least that.”

Presidents have legacies that last far beyond their term. President Ronald Reagan had many positive legacies, not the least of which was the end of the Cold War. However, on the nomination of Justice Sandra Day O’Connor, whose unfathomable jurisprudence often provided the decisive difference between a Court that protected the Constitution and one that thought law was malleable to the tastes of justices, Reagan erred. Through the appointment of Chief Justice John Roberts, who replaced Conservative Judge William Rehnquist and Justice Samuel Alito who assumed O’Conner’s seat, President George Bush has taken important steps to mitigating that error. It should be remembered that Bush had to be persuaded by the Conservative base that his first choice, Harriet Miers, did not have the appropriate judicial experience for the Court. She might have voted on most issues parallel to Alito, but her participation on the Court would have been far more of a crap shoot than Alito’s. We are now seeing the delicious fruits of a real movement toward to the Right.

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