The Lonely Centrist

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Thursday, January 19, 2006

A few thoughts on Wisconsin Right to Life v. FEC

So earlier this week the Supreme Court heard oral argument in Wisconsin Right to Life v. Federal Election Commission. The question is whether or not citizen's groups have any right to run ads that mention a member of congress within 60 days of a general election, and thirty days of a primary election. Wisconsin Right to Life (WRTL) wanted to run ads urging Wisconsin voters to contact Senators Herb Kohl and Russ Feingold to ask them to oppose judicial nomination filibusters, an issue then before the Senate. The ads included no praise or criticism of either Senator, and did not state either Senator's position in the issue. But because Feingold was a candidate for re-election the ads were banned. WRTL claims that American citizens ought to be able to comment on ongoing congressional activity.

The government was perpetually disingenuous, and the threat to free speech pretty clear.

1. Back when McConnell v. FEC was up, the government, per then Deputy Solicitor General Paul Clement, argued that the Court should uphold the 60 day ban on ads against a facial challenge, because as applied challenges would still be available. This week, the government, per Solicitor General Paul Clement, argued that the Court should not entertain as applied challenges to the ad ban. I guess being promoted can alter your views. Chief Justice Roberts quite correctly described this as a "bait and switch."

2. Clement argued that the ad would have been permitted had WRTL not mentioned candidate Feingold by name. Right. It also would have been permitted if it had urged Americans to buy condoms, burn flags, or support terrorism, or if it had been an ad for a strip club, or to attend a march for the Ku Klux Klan, or to buy an illegal radar detector. But "call Senator Feingold and Senator Kohl at the numbers on your screen, and tell them to oppose judicial filibusters"? Well, we've got to draw the line somewhere. I am at a complete loss as to how anyone who supports this stuff can be upset that the government has tapped a small number of phone calls between U.S. residents and suspected terrorists overseas, but that's another issue - and I don't mean to endorse warrantless wiretaps.

3. Clement also argued that the ads could have been funded by WRTL's PAC, which some of the Court seemed to find persuasive. So this is the point we've reached - if you want to urge your neighbors to call your congressman about a pending legislative issue, form a PAC. Makes us long for the days when PACs were the great Satan of Reform.

Pathetic conceptually, but also in practice. In this case, as in other recent campaign finance cases, the justices seem oblivious to the difficulties of just "forming a PAC." For example, a small minority will be unlikely to have as big a PAC as a large group - yet it is just that small minority, because it is small, that needs to speak, that needs the intensity of large contributions. And what if you don't have a PAC? What if you represent "Citizens for a Better Wisconsin," an incorporated non-profit that hasn't started a PAC, and then all of a sudden, 60 days before an election, Congress starts undertaking some legislation that is detrimental to your group or its aims - say it introduces the "Bipartisan Destroy Wisconsin Bill of 2006." It takes time to start a PAC, and even more to raise money for it in small amounts. In short, the PAC option favors large and established interests over smaller interests and newcomers to the process.

3. Clement also argued that a bright line is needed, because otherwise it is tough to know whether or not ads are intended to influence elections, or issues. Well, here's a bright line - no ads that mention a political candidate, ever. Does that work for you? In Buckley v. Valeo, the Court understood the problem, and so ruled that you can say pretty much anything short of "vote for, vote against." It was sort of a compromise. Not great, but at least it left lots of room for citizens to speak out about their government. Here's what happens when you compromise with tyranny - tyranny comes back for more.

4. Poor Justice Breyer seemed peeved that he should even have to be there. You could almost hear him thinking, "Why can't people just shut up. That's what active liberty is all about. If your fellow citizens want you to shut up, then shut up, and quit bothering we judges with these claims of 'rights.'" Well, sorry Justice, but it's your job. We know you don't intend to do it, but the tradeoff is that you at least have to go through the motions.

Breyer also asked why the FEC wasn't regulating 527 groups. Besides the fact that that issue wasn't before the Court, the McCain-Feingold law, and the FECA it amends, don't regulate 527s at all unless they are "political committees," a defined term under the law that does not encompass all 527s. (In fact, most 527s are already regulated by the FEC, something most people have trouble understanding). In Colorado Republican Federal Campaign Committee v. FEC, a 2001 case, Breyer, showed at oral argument that he did not understand the earmarking provisions of federal election law, that say that if a person gives to a party with instructions that the funds go to a specific candidate, it counts as a contribution to the candidate. In McConnell v. FEC, Breyer demonstrated that he did not understand PAC solicitation rules, that a PAC can't just solicit anybody in the general public. Now this. Is it really too much to ask that a Justice of the U.S. Supreme Court try to understand the law in the cases before the Court?

5. Justice Ginsberg wanted to know why WRTL didn't run the ads after the election. Two points: 1) should the government determine when a group can run ads with a legit purpose; and 2) back before the election, when WRTL was told it couldn't run ads, how did anyone know their plans for after the election. In other words, is Justice Ginsberg suggesting that the way to handle these cases is to wait until the law is irrelevant, and then decide if you could have run the ads back when the law was relevant, though the question is now irrelevant? Now there's a legal standard for you.

Some links to reports:
Tony Mauro, for the First Amendment Center
The Associated Press coverage
The Pittsburg Post
The Always Insightful Bob Bauer
And the most entertaining report, from the Skeptic.

  • The Skeptic
  • Andrew Sullivan
  • Michael Barone
  • The New Republic
  • National Review
  • Democracy Project
  • Bob Bauer
  • Center for Competitive Politics
  • Ryan Sager
  • Going to the Matt
  • Professor Bainbridge
  • Volokh Conspiracy
  • Mystery Pollster
  • Amitai Etzioni
  • Alexander Chrenkoff
  • Middle East Media Research Institute
  • Right Democrat
  • Democrats for Life