Thank you, Wisconsin Right to Life

I have only skimmed today's decision in Wisconsin Right to Life v. FEC, but have the following initial impressions.


The McCain-Feingold "blackout" provisions - the banning of unregulated expenditures for express advocacy for or against a candidate during a period immediately preceding a federal election - survive to fight another day, but only barely and in severely weakened form.

Justices Scalia, Thomas and Kennedy, concurring, would have stricken the blackout provision as facially unconstitutional, i.e., as inherently "chilling" to constitutionally protected speech.

Chief Justice Roberts and Justice Alito would not go along, but went out of their way to define express advocacy (not permitted unless funded in a way that comports with McCain-Feingold) and issue advocacy (permitted - even if funded from corporate and union treasuries) in a way that will permit a great deal of election time advocacy. They flatly reject the suggestion that the "intent and effect" of an ad to favor or disfavor a candidate ought to matter. They say that we may only consider the content of the ad. WRTL's ad was clearly advocacy about an issue (the confirmation of judges) and lacked what the opinion calls indicia of express advocacy for or against a candidate.

Alito even suggests, in a brief concurrence, that should Scalia and company prove to be correct about the "inherently chilling" nature of the blackout period, he is prepared to consider a facial challenge and the reversal of that portion of McConnell v. FEC upholding the blackout provision.

My sometimes interlocutor, Illusory Tenant, will certainly note that, in part, the Chief Justice based his rejection of the FEC's justification for the regulation of election time issue advocacy on the Courts' holding in Bellotti that corporations have free speech rights. The dissent, it seems, did not seek to overrule Bellotti but thought that the regulation could nevertheless be justified.

My sympathies lie with the Scalia concurrence and I think that at least one basis for that sympathy was well put by Chief Justice Roberts, notwithstanding his failure to follow the implications of his own justification. He rejects the suggestion that, even if the blackout is applied to WRTL's ad, there is no constitutional problem because unregulated issue advocacy would still be permitted as long as it did not mention a candidate for federal office." In so doing, Roberts cites "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his message."

But, if that's true (and it certainly ought to be), then why can't a truly independent speaker who chooses the quite obvious time - an election - to speak on a candidate's position on the issues communicate at least "some indicia of express advocacy" - i.e., mention of "an election, candidacy, political party" or even " a candidate's character, qualifications or fitness for office." If we are satisfied that the potential for corruption does not justify regulation of an ad that quite clearly may have the "intent and effect" of favoring one candidate over another, why should the inclusion or exclusion of the "magic words" of advocacy make a difference?