Completing a day of 5-4 decisions, the Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on each of the day's rulings.Here's my earlier post on the case, written after the oral argument:
[T]he Wisconsin Right to Life case... is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.So, Roberts and Alito vote as expected. And you can expect to see plenty of issue ads -- and litigation about them -- in the future.
ADDED: Here's the opinion. It's rather fragmented. Chief Justice Roberts writes for a majority for only part of his opinion. Only Justice Alito sticks with him until the end (but he still writes a separate opinion). Scalia, Kennedy, and Thomas peel away, and Scalia writes their concurring opinion. The liberals stick together with Justice Souter doing the writing.
Let's start with Justice Scalia. Here's how he starts:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesté being a serious crime in Morocco) as follows: “ ‘I’m not a revolutionary, I’m just defending freedom of speech… . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’ ” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running. That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the constitutionality of which we upheld three Terms ago in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003). As an element essential to that determination of constitutionality, our opinion left open the possibility that a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional because it was (to pursue the analogy) only the king’s policies and not his tenure in office that was criticized. Today’s cases present the question of what sort of showing is necessary for that purpose. For the reasons I set forth below, it is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced in McConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.Unsurprisingly, he's for overruling.
Chief Justice Roberts takes the narrow approach:
[T]he speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We... 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.Alito's very short separate opinion states that it is unnecessary to reconsider whether §203 is unconstitutional on its face but:
If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech... we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n...Until then, enjoy the chill. And the litigation.