A defeat for free speech

Supporters of campaign finance limitations on free speech are casting today's Supreme Court decision in Wisconsin Right to Life as a "Big Win for Campaign Finance Deregulation." It's not. No, it's a defeat, a serious defeat, brought about by the hands of the two most recent appointments to the Court.

Three justices, Scalia, Thomas, and Kennedy, would have voted to overrule most of the existing muddle of Supreme Court precedents on campaign finance reform and returned us to the days when "Congress shall pass no law" really meant "no law" not, "no law unless it furthers some 'compelling governmental interest' and is 'narrowly tailored' to promote that interest." Writing for himself, Thomas, and Kennedy, Justice Scalia wrote: "I would overrule that part of the Court's decision in McConnell upholding §203(a) of BCRA." (slip op., p. 58)

The dissenting justices were the usual suspects, the quartet of Justices Souter, Stevens, Ginsburg, and Breyer. So that's 4 votes to uphold §203(a) of McCain-Feingold as applied to prohibit the issue ads which WRTL wanted to run right before an election, 3 votes to overturn McConnell's holding on §203(a), and 2 votes to find this particular application of §203(a) unconstitutional but leave it in place for future tyranny by the Federal Election Commission.

Had the Chief and Justice Alito voted with Scalia and the others, we had the votes to overturn McConnell and get the government out of the business of censoring political speech before elections. They didn't need to play internal politics with their votes to get a cohesive outcome. They could have provided a far clearer precedent by casting their votes with Scalia and Thomas and Kennedy. They chose not to.

How many elections must we win? I was sympathetic to the coalition of the chillin', but results like this are going to make me think again. As another blogger once said, McCain-Feingold is wrong and unAmerican. Justice O'Connor sided with the liberal members of the Court in McConnell. Chief Justice Roberts and Justice Alito could have overturned that monstrosity of a decision today. They chose instead to perpetuate Congress and the FEC and the Court's power to decide what you can and cannot say, in ads, before a federal election.

UPDATE: I am left with one small ray of hope. The Chief Justice says: "We have no occasion to revisit that determination [McConnell's rejection of a facial challenge to McCain-Feingold] today." Alito, in a concurring opinion, says similarly: "we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm?n, 540 U. S. 93 (2003), that §203 is facially constitutional." My only hope is that Roberts and Alito did not believe the procedural posture of the case permitted them to reach the facial constitutionality of sec. 203. Being devout minimalists, they reached the narrowest possible decision, while fully intending to uphold a facial challenge when presented with a case which could not be resolved without it. As Justice Scalia notes, however, most First Amendment precedents from the court do not avoid reaching facial challenges precisely because of the risk of severely chilling protected speech. The Court had every right to review the facial constitutionality of the statute here, and chose not to.

H/T: Instapundit.