Today, the U.S Supreme Court released its opinion in FEC vs. Wisconsin Right to Life, a case which challenged the portion of the McCain-Feingold campaign finance law which limited the issue advocacy in which organizations could engage near the time of an election.  Justice Scalia joined with the majority in overturning a significant portion of the federal law, but also issued a concurring opinion that argues the Court didn\’t go far enough.

I can\’t do Scalia\’s style any justice, so here\’s an excerpt from his opinion:

A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse 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?’\”1 Well, in the United States (making due allowance for thefact 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…

The question is whether WRTL meets the standard for prevailing in an as-applied challenge to BCRA §203. Answering that question obviously requires the Court to articulate the standard. The most obvious one, and the one suggested by the Federal Election Commission (FEC)and intervenors, is the standard set forth in McConnell itself: whether the advertisement is the \”functional equivalent of express advocacy.\” McConnell, supra, at 206. See also Brief for Appellant FEC 18 (arguing that WRTL’s \”advertisements are the functional equivalent of the sort of express advocacy that this Court has long recognized may be constitutionally regulated\”); Reply Brief for Appellant Sen. John McCain et al. in No. 06–970,  p. 14 (\”[C]ourts should apply the standard articulated in McConnell; Congress may constitutionally restrict corporate funding of ads that are the ‘functional equivalent of express advocacy’ for or against a candidate\”). Intervenors flesh out the standard somewhat further: \”[C]ourts should ask whether the ad’s audience would reasonably understand the ad, in the context of the campaign, to promote or attack the candidate. Id, at 15.

The District Court instead articulated a five-factor test that looks to whether the ad under review \”(1) describes a legislative issue that is either currently the subject of legislative scrutiny orlikely to be the subject of such scrutiny in the near future; (2) refers to the prior voting record or current position of the named candidate on the issue described; (3) exhorts the listener to do anything other than contact the candidate about the described issue; (4) promotes, attacks, supports, or opposes the named candidate; and (5) refers to the upcoming election, candidacy, and/or political partyof the candidate.\” 466 F. Supp. 2d 195, 207 (DC 2006). The backup definition of \”electioneering communications\”contained in BCRA itself, see n. 2, supra, offers another possibility. It covers any communication that \”promotes or supports a candidate for that office . . . (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.\” And the principal opinion inthis case offers a variation of its own (one bearing a strong likeness to BCRA’s backup definition): whether \”the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.\” Ante, at 16.

There is a fundamental and inescapable problem withall of these various tests. Each of them (and every other test that is tied to the public perception, or a court’s perception, of the import, the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segmentof society to which §203 applies. Consider the applicationof these tests to WRTL’s ads: There is not the slightestdoubt that these ads had an issue-advocacy component.They explicitly urged lobbying on the pending legislative issue of appellate-judge filibusters. The question before usis whether something about them caused them to be the \”functional equivalent\” of express advocacy, and thus constitutionally subject to BCRA’s criminal penalty. Does any of the tests suggested above answer this question withthe degree of clarity necessary to avoid the chilling of fundamental political discourse? I think not.

The \”functional equivalent\” test does nothing more than restate the question (and make clear that the electoral advocacy need not be express). The test which asks how the ad’s audience \”would reasonably understand the ad\” provides ample room for debate and uncertainty. The District Court’s five-factor test does not (and could not possibly) specify how much weight is to be given to eachfactor—and includes the inherently vague factor of whether the ad \”promotes, attacks, supports, or opposes the named candidate.\” (Does attacking the king’s position attack the king?) The tests which look to whether the ad is \”susceptible of no plausible meaning\” or \”susceptible of no reasonable interpretation\” other than an exhortation to vote for or against a specific candidate seem tighter. They ultimately depend, however, upon a judicial judgment (or is it—worse still—a jury judgment?) concerning \”reasonable\” or \”plausible\” import that is far from certain, that rests upon consideration of innumerable surrounding circumstances which the speaker may not even be aware of, and that lends itself to distortion by reason of the decision maker’s subjective evaluation of the importance or unimportance of the challenged speech. In this critical area of political discourse, the speaker cannot be compelled to risk felony prosecution with no more assurance of impunity than his prediction that what he says will be found susceptible of some \”reasonable interpretation other than as an appeal to vote for or against a specific candidate.\” Under these circumstances, \”[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-caselitigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.\”


The opinion released today overturns portions of the law upheld only three terms ago in  McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), in which Justice Sandra Day O\’Connor sided with the 5-4 majority to uphold the McCain-Feingold issue advocacy provisions. Justices Alito and Roberts both sided with the majority in today\’s decision.

This being the case, special recognition for today\’s decision goes to Ohio and Florida, and their electoral votes.