On the very day Sen. John McCain (R.-Ariz.) was in New Hampshire officially announcing his candidacy for President, his lawyer was in the United States Supreme Court (specifically in McCain’s name) arguing that the 1st Amendment does not protect the right of advocacy groups to petition their government via radio or television ads aired during the McCain-Feingold “blackout” period for such communications in the one or two months preceding an election.
The Supreme Court heard Wednesday from the federal government and McCain that Wisconsin Right to Life (WRTL) was—and should continue to be—prohibited by the McCain-Feingold law from running television ads in October of 2004 urging Wisconsin citizens to contact their U.S. senators to tell them to vote to end the filibuster against the federal judicial nominees of President George W. Bush.
According to the law’s proponents, such advertisements do not qualify as “legitimate” issue advertising because there is nothing “functionally different” between the WRTL ads and those which might be aired for the purpose of influencing an election. Because Sen. Russ Feingold (D.-Wis.) was on the ballot for re-election in November 2004, the government reasoned the ads were the “functional equivalent” of express advocacy advertisements, and therefore, it was not legal for an issue organization such as WRTL (one that is incorporated) to use its treasury funds to pay for such communications.
The Supreme Court upheld the statutory restrictions on such advertising in its 2003 decision in McConnell v. Federal Election Commission against a challenge from numerous advocacy organizations to the facial validity of the statute. The court held that the statute was “not overbroad” and that specific instances in which the law might be applied in an overbroad or unconstitutional manner could subsequently be brought back to the Supreme Court for review. That holding in McConnell is the basis on which WRTL sought to run its advertising and from which arose the case heard by the Supreme Court last Wednesday.
The central issue, according to WRTL attorney James Bopp, is that the Supreme Court should “keep the promise of McConnell”—namely, that there is speech that is outlawed under the broad application of McConnell, but is allowed under the 1st Amendment, and that the Supreme Court must articulate a framework for protecting such speech.
Most antagonistic to the WRTL were Justices Stephen Breyer and David Souter who aggressively attacked WRTL’s assertions that the ads were or ever could be “genuine issue ads” requiring 1st Amendment protection under any theory, from free speech to the citizens’ right to petition the government. Souter, in particular, seemed to suggest that it is necessary to consider the context of all such advertising to determine if a citizen’s vote might be impacted by the airing of such ads immediately prior to an election, and if such an impact might occur, then the ads are and should be illegal.
Bopp repeatedly reminded the court that the 1st Amendment does not allow for throwing out protected speech in the interests of outlawing some “bad” speech—and that it is certainly possible for the court to establish a reasonably ascertainable standard for which speech is to be protected and which speech is not.
Bopp suggested that such a standard might include: the content is devoted to a current legislative matter, urging citizens to take action regarding such matter; the ads don’t mention or refer to the election or the opponent of the elected official; and the ads are part of a long-standing legislative pattern of involvement in an issue.
Justice Antonin Scalia asked attorneys for both sides about who has the burden of proving that speech is permissible: Whether it is the government’s burden to prove that certain speech is not protected or whether the citizen has the burden of defending the permissibility of his speech. Scalia reminded all that the court’s historic 1st Amendment jurisprudence has placed that burden on the government, not the citizens.
Bopp recalled for the court the ways in which the government and the proponents of McCain-Feingold’s speech restrictions have continued to “move the goalposts”—first, by the government’s argument in McConnell that the statute was “not overbroad” because, at that time, they advised the court that any specific instances in which the law might be overbroad could be addressed in “as applied” challenges to the law on a case-by-case basis. Then, when WRTL initially brought this case, the government argued that the court’s ruling in McConnell precluded any “as applied” challenges. The Supreme Court rejected that argument and remanded the case to the special three-judge panel for development of a record and an adjudication of this “as applied” challenge based on the facts of the case. The three-judge panel found that the law, as applied, is unconstitutional, thus setting the stage for last Wednesday’s arguments.
Now, according to Bopp, the government argues that while there might be a situation in which the facts of a particular case might warrant the court’s decision to invalidate the law in that particular case, this is not such an instance. In fact, Bopp said, the proponents of the speech restrictions have not identified any situation in which they would agree that an “as applied” challenge would be valid.
Thus, the very basis on which the proponents successfully urged the Supreme Court to uphold the statute in its McConnell arguments proves to have been a “sham”—much like the advertising the campaign reformers have accused WRTL and other citizens groups of airing.
The Court’s decision will be rendered by the end of June.
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