Supreme Court Upholds Rights of Citizen Speech

Supreme Court Upholds Rights of Citizen Speech

WASHINGTON , D.C. – In a major victory for First Amendment political rights, the U. S. Supreme Court today ruled that grassroots organizations are free to engage in issue advocacy, even when that advocacy occurs close to an election.

Today’s decision allows citizen groups to engage in issue advocacy close to an election, but it does not expressly overturn the portions of Bipartisan Campaign Reform Act of 2002 (“McCain-Feingold”) that regulate the speech of citizen groups.  However, the decision indicates that the Supreme Court is skeptical of these portions of McCain-Feingold.

“The Court’s decision today confirmed what many citizens knew all along; McCain-Feingold burdens citizen’s political speech,” said former FEC chairman and chairman of the Center for Competitive Politics Brad Smith.  “The Court is clearly taking a fresh look at McCain-Feingold and that is good news for everyone who believes in the First Amendment.”

Chief Justice John Roberts, writing the majority opinion, argued that the McCain-Feingold campaign finance law violates the First Amendment rights of grassroots organizations.   Roberts was joined by Justices Samuel Alito, Clarence Thomas, Antonin Scalia, and Anthony Kennedy.

Justices Thomas, Scalia, and Kennedy supported overturning the portions of McCain-Feingold that ban issue advocacy close to an election.   Roberts and Alito did not believe that the case provided an occasion to revisit that ruling.  Nonetheless, the decision is deemed a major victory for grassroots organizations.

Previously, McCain-Feingold barred citizen groups from spending general treasury funds to run issue advertisements within 60 days of a general election and 30 days of a primary election if the advertisement mentions the name of a candidate for federal office.   Today’s ruling will allow grassroots organizations to engage in this type of advocacy in the future.

“The court’s ruling says that government can not suppress citizens’ voices,” said Smith.   “This decision allows for greater citizen participation in politics which can only be a good thing.”

The case, FEC v. Wisconsin Right to Life, Inc., stems from the 2004 Senate battle over President Bush’s judicial nominees.   Fearing a Democratic filibuster, Wisconsin Right to Life began an advertising campaign urging Wisconsin citizens to contact Senators Herb Kohl and Russ Feingold and ask that they oppose the filibuster.   At the time, Senator Feingold was running unopposed for reelection, so the FEC ruled that the ads constituted “electioneering communication” and therefore were not permissible under McCain-Feingold.

Additional case resources, including CCP’s amicus brief, can be found by visiting


The Center for Competitive Politics is now the Institute for Free Speech.