Monday, January 23, 2006

A step in the right direction

In a unanimous decision, handed down less than a week after argument, the Supreme Court has remanded Wisconsin Right to Life v. FEC back to the Seventh Circuit.
The case, which I discussed briefly below, raises the question of whether there ought to be an exception to McCain-Feingold's prohibition of ads mentioning a candidate for federal office in a specified period before an election unless the ad is paid for with regulated campaign contributions. WRTL wanted to lobby Feingold to quit holding up Bush's judicial nominees, but had to stop on August 15 because Feingold was running for reelection. The effect of this is to give public officials who are running for re-election 90 days in which they are free of effective public criticism by grass roots lobbying organizations. This is a boon, in particular, for incumbents who generally have an advantage in raising regulated campaign contributions and who, as a consequence, are that much less likely to be criticized at precisely the time when most folks are paying attention.

The remand doesn't resolve the case but merely tells the 7th Circuit to address WRTL's claim that applying the blackout to it would be unconstitutional. (SCOTUS did this by saying its earlier opinion upholding "facial" challenges to McCain-Feingold, essentially a challenge to its language, does not preclude challenges to the way in which it is applied.) The blackout is supposed to prohibit "sham" issue ads (you know, "call Sen. Kennedy and tell him to quit leaving girls at the bottom of rivers"), but WRTL's ads weren't shams. They reflected the interests of a grass roots organization and seemed to be a constitutionally protected petition to a public official.

Let's pray the 7th Circuit gets it right.

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