The Supreme Court's Double Standard; Justice Scalia's Vote for the First Amendment

Article excerpt


In the Supreme Court's allegedly purifying 5 to 4 decision in McConnell vs. Federal Election Commission, political campaign financing dissenter Justice Antonin Scalia said the new statute "cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government." Off the court, also dissenting, Anthony Romero, executive director of the American Civil Liberties Union (ACLU), noted: "The decision will do far more to restrict political speech than to curtail the influence of money on politics."

One part of this so-called "reform" legislation greatly reduces the First Amendment rights of millions of Americans who want to express their views during the crucial period of national election campaigns through organizations that produce issue ads. But the new law does not limit the previous right of prodigiously wealthy Americans - for example, George Soros or Bill Gates - to spend as much of their own money, without contributing to a political party or a candidate, on election advertisements as they like.

Most of us who are not that rich recognize that we have to amplify our views as a collective to get them heard. So, we join the National Rifle Association, the ACLU or other organizations. As our surrogates, they pay for "issue ads" that are obviously most effective when broadcast on radio and television close to the date of a primary or general election.

But the new "reform" law forbids such "electioneering communications" on television or radio that refer to specific candidates for federal office within 30 days before a primary or 60 days before a general election.

The ACLU or National Right to Life Committee would violate that law by citing, in an ad, the name of the candidate they oppose or support - or even by referring to that candidate in some way that appears to directly urge a vote for or against.

As Justice Anthony Kennedy, who also dissented, wrote, the Bipartisan Campaign Reform Act "makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman's impending vote to permit logging in national forests."

Last spring, at a conference of journalists that I attended in Boston, U.S. Rep. Martin Meehan (D-Mass.), a fervent supporter of what was called the McCain-Feingold bill during its gestation, was asked about these specific time frames of 30 and 60 days. "Why," he said, "that's when people are most interested in elections!"

Of course. The core of the First Amendment is our right to say what we think about the candidates when voters are likely to be most influenced. …