I don’t usually like pontificating on what the Supreme Court might do, and I see no reason to repeat what qualified experts are saying elsewhere. Nor am in much mood at this moment for serious constitutional analysis, and those who wonder what I think on the Constitutional side have ample places to look, including my book Unfree Speech, which you can find from the main CCP cite. But I do have a few thought’s on Wednesday’s argument in Federal Election Commission v. Wisconsin Right to Life that I’m not seeing elsewhere. I did not attend the oral argument, but I’ve read the transcript and listened to much commentary and conversation already, including the excellent forum put on by the Cato Institute.
A few thoughts I’m not seeing elsewhere, in no particular order…
1. The government is asking for a contextual analysis. "We all know," the Government and Senator McCain and the other congressional intervenors are saying, "that WRTL wanted to defeat Senator Feingold. So if we consider that context – and shouldn’t we? – then shouldn’t this ad be barred?" The assumption seems to be that this is correct, that context cuts only in favor of prohibiting the ad. But does it?
If we really look at context, couldn’t that context tell us that the odds of defeating Feingold electorally were very, very low, and thus it is unlikely that a group such as WRTL would spend its limited resources trying to defeat him. On July 24 2004, shortly before WRTL began airing ads, the National Journal reported that Feingold’s reelection numbers were over 50 percent and that, "Feingold is favored to win… Republicans were unable to persuade their top choices to oppose Feingold." On that same date, The Economist reported that "most people think Feingold will win." The Journal rated the seat as "probably safe," along with the seat of California’s Barbara Boxer. On August 3 the Milwaukee Journal Sentinel noted that all of Feingold’s possible GOP challengers had, "far less campaign cash than Feingold." In August, National Review, looking at GOP Senate chances, noted that the race against Feingold "will be difficult." Against this background, doesn’t it make sense for WRTL to want to influence Feingold on the issue, rather than beat him? Feingold was at least marginally vulnerable. But realistically, context tells us that WRTL’s best bet was to use that vague threat to move Feingold on the issue – that is, Feingold might moderate his position on filibusters precisely to prevent a strong challenge to his reelection. Officeholders, after all, prefer to win by a lot than by a little, and prefer to minimize their vulnerability.
In short, when the government says the Court should look to context, they only mean part of the context. The idea that the only explanation for WRTL’s ads was a desire to defeat Feingold is, in Mr. Bopp’s words, "psychotic" and indicative of a Washington mindset that all of life is about Federal elections. The response to this might be the government’s other argument – that whatever WRTL’s motives, the ad could affect federal elections. But this proves too much. If any speech that could influence federal elections can be banned, even including, as the government’s experts now claim, speech that doesn’t name candidates, then clearly the the government’s approach is overbroad.
2. Justice Breyer seemed to base his argument on a policy claim: emphasizing all the time he had spent reading the record in McConnell, he said at argument, "I drew one conclusion. That one conclusion was if there’s a law, and it’s a good law under the Constitution, it is that corporations and labor unions cannot give money to campaigns." Of course, that’s not exactly this case, but OK. Breyer is still stuck on the logic of "active liberty." Note that Breyer’s fundamental starting point is not the Constitution, but his idea of good policy. This is why "active liberty" is such a hollow doctrine. There is a part of me that would love to see a five person majority, over Breyer’s dissent, decide for WRTL and base its decision entirely on "active liberty." Maybe then it would finally dawn on Justice Breyer that his theory provides no guidance at all, beyond justices’ individual policy preferences. Breyer eventually got down to the specifics of this theory, noting, as in "Active Liberty" and in past decisions, that "there are significant constitutional interests on both sides." From this Breyer has in his writing drawn the conclusion that the Court should not have a presumption of unconstitutionality. But this is absurd. Of course it should. What else can the First Amendment mean? Breyer surely doesn’t think that "Congress shall make no law…" is to be applied literally in every case. The only other logical meaning of the phrase, then, is that it creates a strong presumption against regulation. For surely it cannot logically mean something like Breyer would like it to, e.g. "Government laws about speech should promote ‘active liberty.’" The Constitution is not merely about values or ends – it is about means to ends. And the means to the end of "active liberty" that is spelled out in the Constitution is a presumption against regulation, if it is anything at all.
3. No one – at oral argument or at the Cato event, anyway – seemed to give much thought to the Court simply affirming the district court. I remain puzzled that this option is such a non-starter for "reform" advocates. The government and intervenors might have been wise not to appeal that district court decision, but rather accept it and write a regulation giving it the most grudging interpretation possible. In that scenario, there would be an exception only for ads that did not mention a party; the candidate’s position on an issue; the candidate’s personal characteristics or fitness for office; or an election. No emotional visual or audio effects would be allowed. Professor Hasen and Justices Breyer and Souter seemed convinced that this would be the end of McCain-Feingold (as if we should be so lucky). But in fact, for 3 years now, I have wondered who would really care. For all of Professor Hasen’s fears that you could "drive a truck" through it, I don’t see it at all. Particularly when, as Professor Lederman noted, corporations have other avenues, including hard hitting braodcast ads more than 60 days from the election, internet communications, or expenditures on direct mail or other print advertising. It just seems to me that if you really want to defeat a candidate, the WRTL ad is pretty ineffective. That’s not to say it would have no effect – but to say that is to take us back to the overbreadth question – you can’t ban anything that might have an effect on an election.
4. The Washington Post and New York Times are beside themselves that the Court might undermine the precedent of McConnell. Professor Hasen argued today, correctly, I think, that the Court could avoid overruling McConnell while chipping away at it. But the reform community would be wise not to be too up in arms about such an action. For one thing, the Times and Post both take a curious approach to fidelity to prior decisions. On abortion, Roe v. Wade can’t be overturned because it is so longstanding. Here, McConnell can’t be overturned precisely because it is so recent. But decisions these papers don’t like are always fair game. Similarly, reformers act as if campaign finance precedent begins with McConnell v. FEC. But if they are honest, they know that McConnell itself grossly undermined the precedent of Buckley v. Valeo, even while claiming its fidelity to the case. A decision that did the same to McConnell might be viewed as simply returning to a more faithful interpretation of Buckley.
5. The best line I heard today was Kathleen Sullivan’s description, at the Cato forum, of Justice Scalia. The Justice, said Dean Sullivan, "Could scarcely restrain himself from jumping over the bench and joining appellees’ legal team."
6. The arguments of the government and intervenors have been remarkably duplicitous. Seem Jim Bopp’s excellent piece at National Review for details.
I’m sure I’ll have other thoughts, but that will do for now.