Because a government lawyer took an argument nearly to its logical extreme, the Supreme Court may be prepared to invalidate more provisions of the 2002 McCain-Feingold campaign finance restriction law passed in 2002. If the courts takes the Constitution seriously, it should invalidate pretty much the entire law.
The law, officially titled the Bipartisan Campaign Reform Act, you may recall, pretty much turned the First Amendment on its head. In Section 203 it outlawed the use of corporation, labor union and nonprofit advocacy group funds to engage in campaign “electioneering” (mainly by running independent ads) within 30 days before a primary election and 60 days before a general election. That makes a hash of the prohibition on government restriction of freedom of speech. The First Amendment has been interpreted to protect the right to create and distribute pornography, but its primary purpose was to protect political speech. It is difficult to imagine a time when that freedom is more important than in the weeks before an election.
Former President George Bush signed the law even though he said he had problems with it (thus shirking his duty to protect and defend the Constitution). He expressed the hope that the Supreme Court would find it unconstitutional, as he claimed to believe it was. But the Supreme Court declined to rule that the section was unconstitutional “on its face” (as the legal eagles put it), although it has subsequently restricted its reach a bit.
In Citizens United v. Federal Election Commission, heard March 23, the Supreme Court considered restricting the restriction further. Citizens United, a conservative group organized as a nonprofit corporation, last year made a 90-minute film, “Hillary: The Movie.” Let's just say it was about as objective as a Michael Moore “documentary,” referring to the current secretary of state in less than complimentary terms. The group scheduled it to run on cable TV during the heat of the primary season. The Federal Election Commission, citing the McCain-Feingold law, enjoined the group, and Citizens United sued. A federal judge backed up the FEC, and Citizens United appealed.
Oral arguments before the Supreme Court are often rather dry, of interest mainly to legal scholars. But this session got interesting. Deputy Solicitor General Malcolm Stewart argued that even though the BCRA did not mention documentaries, it could be interpreted to include them. When asked if the law could permit banning a book that advocated for or against a candidate, he responded that if it was paid for with corporate or union funds, why, sure. Even a 500-page book with only one sentence that said “Vote for X?,” Chief Justice John Roberts pressed. Yep.
Predicting how the Supreme Court will rule is a fool's game, of course. But reporters in attendance seemed convinced that this insight into just how widely the government might interpret Section 203 could lead to severe limitations on its application.
The court ought to do what it should have done the first time this unjustifiable law came before it: go all the way and overturn Section 203. Restricting political speech at precisely the time when political speech is most important is unjustifiable and a clear violation of the First Amendment.