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Supreme Court Overturns McCain-Feingold Ad Restrictions

The Supreme Court just issued an opinion in the case of FEC v. Wisconsin Right To Life, a case testing whether the prohibitions against political advertisements under §203 of the Bipartisan Campaign Reform Act was constitutional as applied to political ads sponsored by Wisconsin Right to Life during the 2004 elections. The Supreme Court, in a 5-4 decision, ruled that §203 of the BCRA was unconstitutional as applied to the facts of the current case. The majority held:

In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.

This is a somewhat narrow holding, as McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) had already ruled that the provision of the BCRA at issue here was not facially invalid. McConnell did not foreclose as-applied challenges such as the one here. Three of the five members of the majority (Justices Scalia, Thomas, and Kennedy) argued that the McConnell should be overruled. Chief Justice Roberts wrote the opinion of the Court with Justice Alito separately concurring.

More to come as I wade through the rather lengthy opinion this afternoon…

UPDATE: Loyola Law School Professor Rick Hasen has some more on the Wisconsin Right to Life case. I think he’s right — Alito hinted that he might go for a full facial challenge later on down the pike, but Roberts and Alito are playing it safe for the moment.

4 responses to “Supreme Court Overturns McCain-Feingold Ad Restrictions”

  1. Marcia Crowley says:

    Oh, wonderful! Full frontal assault to come giving the corporations even more power!

    Not activist of course. NOthing they do is activist by definition since they are rightwingers!

    (Is there any room on the right for actual ordinary Americans other than phony promises of rightwing Jeezuz taking over? Sure is hard to find any… The righties want the Rightwing Corporate Elite to govern us, and they make no bones about it. )

  2. Eracus says:

    Maybe you should get out more, Marcia, or at least change the bong water.

  3. Jay Reding says:

    Marcia: That’s strike one. Again, if you can’t contribute with something meaningful, don’t bother.

  4. Bentell says:

    I support Marcia on this. We’re use to the Right clammoring about activist judges and courts. Why not now? They overturned precident and decided to treat corporations as individuals. Since when do corporations get THAT right and privledge under the constitution that was clearly written for individual freedoms?

    Even Sandra Day O’Connor, who voted to uphold McCain/Fiengold in 2003, was perplexed at this thought. And troubled at what the consequences will be.

    Alito is clearly a know-nothing Bush lap dog. Nothing more. He proved that with his decision, his opinion, and his reaction to the President’s remarks during the State of the Union. He’s unqualified to be on that court. He’s the only one I say that about. But, rightfully so.

    Its clearly a victory for Conservtives and a loss for Democrats.

    And how ironic that you welcome replys on a decision about free speech, hail the decision as a victory for the 1st amendment, yet want to recind Marcia’s right to express hers on this forum.