Jay Reding.com

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.