Roberts and Alito oppose free speech in WRTL
By PatHMV Posted in FEC — Comments (28) / Email this page » / Leave a comment »
Supporters of campaign finance limitations on free speech are casting today's Supreme Court decision in Wisconsin Right to Life as a "Big Win for Campaign Finance Deregulation." It's not. No, it's a defeat, a serious defeat, brought about by the hands of the two most recent appointments to the Court.
Three justices, Scalia, Thomas, and Kennedy, would have voted to overrule most of the existing muddle of Supreme Court precedents on campaign finance reform and returned us to the days when "Congress shall pass no law" really meant "no law" not, "no law unless it furthers some 'compelling governmental interest' and is 'narrowly tailored' to promote that interest." Writing for himself, Thomas, and Kennedy, Justice Scalia wrote: "I would overrule that part of the Court's decision in McConnell upholding §203(a) of BCRA." (slip op., p. 58)
The dissenting justices were the usual suspects, the quartet of Justices Souter, Stevens, Ginsburg, and Breyer. So that's 4 votes to uphold §203(a) of McCain-Feingold as applied to prohibit the issue ads which WRTL wanted to run right before an election, 3 votes to overturn McConnell's holding on §203(a), and 2 votes to find this particular application of §203(a) unconstitutional but leave it in place for future tyranny by the Federal Election Commission.
Had the Chief and Justice Alito voted with Scalia and the others, we had the votes to overturn McConnell and get the government out of the business of censoring political speech before elections. They didn't need to play internal politics with their votes to get a cohesive outcome. They could have provided a far clearer precedent by casting their votes with Scalia and Thomas and Kennedy. They chose not to.
How many elections must we win? I was sympathetic to the coalition of the chillin', but results like this are going to make me think again. As another blogger once said, McCain-Feingold is wrong and unAmerican. Justice O'Connor sided with the liberal members of the Court in McConnell. Chief Justice Roberts and Justice Alito could have overturned that monstrosity of a decision today. They chose instead to perpetuate Congress and the FEC and the Court's power to decide what you can and cannot say, in ads, before a federal election.
H/T: Instapundit.
(cross-posted at StubbornFacts.us)
Had they gotten any of the liberal justices to join them in their ruling, I might be inclined to take that view, also. But they didn't build a broader coalition with this ruling. Roberts, if he tried to, was unsuccessful at getting the liberal members of the Court to join with him and Alito by looking only at the narrow "as-applied" challenge.
Scalia or Thomas or Kennedy could drop dead tomorrow, and there's no guarantee that the next justice would share this more absolutist interpretation of the First Amendment's protections of political speech. The votes were there, taking the "minimal" approach didn't gain Roberts a single vote from the left side of the Court.
The majority hear would not have been "strained," unless Roberts or Alito were doing the straining. Had Kennedy joined with Roberts and Alito rather than with Scalia and Thomas, you'd be right. Roberts would have needed to issue a minimal opinion to keep Kennedy on his side. But Kennedy was with Scalia and Thomas on the issue. No coalition would have fractured if Roberts and Alito also would have joined them.
The larger intellectual revolution that Roberts is leading is to move the Court away from the voting coalition approach to decisions and towards a coherent view consensus on judicial restraint, greater deference to the legislature and the states (i.e. federalism), fewer emanations and penumbras. Moreover, the creditibility of the Court is under great strain, and if the Court tacks back and forth too often based on shifting voting coalitions, the damage will be worse in the long-run. Justice Roberts is mindful that the Court has been losing its moral authority and is striving to regain the trust of the people in the precept of a government rooted in law, not in men.
Actually, this decision increases judicial power. If the Court says the statute is facially unconstitutional, it's done. No power left for the Court. But with an "as applied" rule, the Court now gets to micromanage the law itself. This speech is ok, that speech doesn't past muster, etc. Far from minimizing the power of the Court, the Chief and Justice Alito have taken MORE power for the courts with this decision.
I agree that reversing a recent case should be done infrequently. But the Court's first job is to apply the Constitution correctly. They botched that job in McConnell, could have fixed it here, and didn't. It's not activism to recognize than an unconstitutional law is, in fact, unconstitutional.
Well, we'll see what happens. They've invited a facial challenge to McCain-Feingold, so somebody around the country will air an ad which is clearly and unambiguously prohibited by McCain-Feingold in the 2008 election cycle, or sooner if there's a special election for Senator or Representative before then. I predict that winds its way up to the Court very quickly, and we'll see whether Alito and Roberts are willing to step up to the plate or not.
P.S. The Court has been losing some moral authority because it keeps crafting these Byzantine exceptions and rules and muddled opinions so that they can craft case-by-case rules rather than setting forth some clear statement of the law. This kind of decision is part of that very problem.
Enjoyed your post and agree with your reasoning. However it is easier to follow the discussion if you use the Reply to This feature.
“It is not the possession of truth, but the success which attends the seeking after it, that enriches the seeker and brings happiness to him.”"-Max Planck
I'm well aware of the benefits of the "Reply to This" feature, as we use it over at StubbornFacts.us. Indeed, I chose Drupal as our platform precisely because it allowed threaded discussions.
Which of course makes it all the more embarrassing when I realized, as I did, that I had failed to use the feature about two seconds after I clicked "post comment"! At our site, we've actually set it up so that the "post a comment" text block doesn't appear on the bottom of the screen until you click "add a comment" or "reply," to help prevent such accidents.
LOL! I think the court has already lost most of its "moral authority." "Clear statements" have usually made things much worse in this regard. They far too often invoke precedent, philosophy, psychology, sociology, common law, or international law rather than the federal Constitutional and statutory law that should be the sole and exclusive basis for all their rulings. Anyway, at least muddled case-by-case opinions are much easier to correct if they turn out to be wrong.
From what I'm reading over at ConfirmThem (RedState's sister site on all things law), Roberts and Alito were in the conservative majority. What they did (you are saying) is not go far enough. I dissent.
1. The decision had a conservative result. It didn't overrule CFR as you and I want, but the decision was a victory.
2. Portions of the opinion seem (in the opinion of the law-heads over at ConfirmThem) to be begging for a case that merits a look at CFR its self. Roberts and Alito both seem open to revisiting CFR based on the writing of their opinion.
3. Nothing in the opinion quashed free speech. It was a slash against CFR in as much as the case its self allows. Given the right case, there seems to be the will to overturn CFR.
4. Roberts and Alito are getting Kennedy onboard for several decisions, and we're better of with winning every case we did with narrow opinions (as we did today) than losing 5-4 decisions by making major rulings like you and I want. Roberts and Alito are not only dealing for votes in the chamber, but keeping things cooled down in case there is a retirement soon.
I know the decision wasn't everything we wanted. But it was a clear win (as the other decisions were today), and hardly a fould by Roberts and Alito.
You might post your blog at ConfirmThem and see the reaction it gets there. We're mostly political animals over here, but the ConfirmThem crowd is loving today.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
It really depends on whether you think the court should set clear precedent, even reversing past precedent, and letting it be left at that, or whether the court should attempt case-by-case analysis, setting specific rules and regulations enforced by the courts in the future.
Judicial restraint is evident in not overturning McConnell, but they have given the courts more power to regulate speech in the future. I'm not sure whether the gains made by the decision outweigh the losses.
Donate to Fred Thompson's Campaign right here...you know you want to!
If Kennedy's had not joined Thomas and Scalia, concurring in the result only, point (4) might have some merit. But in this case, for a rarity, Justice Kennedy adopted a very sound, principled position and was willing to join in an opinion expressing it very clearly, with no "balancing tests." Justice Alito and the Chief could have joined with Justice Kennedy and the others to reach a better position, but they chose not to. This wasn't a tactical decision to gain Kennedy's vote. If their minimalism had gotten them any votes at all, I would probably support that argument. But it got them no votes at all, and I really doubt that the Court plays politics among different cases that distinctly. Surely they cut no deal to reach a moderate result in this case in return for a better result from the liberal 4 in some other case.
The fact that there may be a retirement soon makes it all the more important to establish the right rule now, whether than waiting until down the road. Again, this remains a 5-4 vote, which the dissent clearly sees as ignoring McConnell. If they had gotten a 6-3 or 7-2 result by the minimal approach, then that might help solidify the decision against future abandonment by more liberal justices (who aren't generally all that respectful of stare decisis when it comes to overruling conservative court majorities), then again, this argument might have some merit. But they set a weak precedent, not a strong one, by the same 5-4 vote by which they could have established a strong precedent.
that the new justices are exerting an influence on Kennedy. It has long been scuttlebutt that he is sometimes easily swayed by the others, one reason he seemed to drift to the left in recent years.
"Nothing works like freedom, Nothing succeeds like liberty"
Kyle
Justice Kennedy dissented in McConnell. It was Justice O'Connor who provided the 5th vote to uphold section 203(a) of McCain-Feingold. Kennedy has always been against it. He didn't need to be "brought into the fold" on this issue.
It is still almost earth-shattering that Kennedy said that there is a case that he would overturn, stare decisis be darned! Liberals are banking on Kennedy always bowing at the alter of their activist precedents. With this opinion, Kennedy signals that that is not going to be the case, at least not ALL of the time. Until this case, I don't know what the last precedent that Kennedy thought should be overturned outright. So...I do indeed consider Kennedy's vote in this case to be huge - and it is a very good sign.
And the people who kept him from overturning a truly terrible precedent were the Chief and Justice Alito. They HAD Kennedy on an important issue, and they didn't go the distance.
The general thrust of what Roberts and Alito are doing is bringing Kennedy onboard by restricting their rulings to the case at hand. The fact that Kennedy wanted to go outside the case and toss McConnell doesn't make it right. But Kennedy sees (and may respect) that Roberts and Alito are for deciding cases withing being activists, whether it helps Kennedy or not. Taken in total, I think this gets Kennedy's respect and votes (even when it goes against him as in this case it shows consistency and fairness to Kennedy). It seems to be working.
My main point is that I don't think the case its self merits overturning McConnell (as Brad Smith points out in a front page RS piece). The majority didn't take the activist stance and go outside the parameters of the case. Roberts even hinted in the opinion that a future case may provide such an examination.
While I want CFR thrown out, I want it done with the proper case.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
If the measure is whether you call for people to vote a certain way, that's easy to avoid I'd think, just as they did in this case. We're back to the old business of "magic words".
do conservatives as a whole refuse to understand?
This case ahs increased the degree of free speech in the land.
That is good.
Keeping this government, which is daily salivating over the bipartisanprospect of imposing censorship on radio via the (un)fairness doctrine, will be a work of many years.
Alito and roberts and the rest of the pro-freedom wing of the USSC need to tread very carefully so that they have plenty of resources when the big assaults come.
And they are coming.
We bumpkins have royally ticked off the governing class this year, and the year is young.
Honestly, my sympathies are with Scalia and Thomas here, but the Chief Justice did the right thing.
His philosophy is that narrow rulings that garner the broadest support are best. In this case, he and Alito could have joined Kennedy, Scalia, and Thomas in overturning McConnell - and yes, that would have been good.
But then what happens the next time there is a close call on a controversial case, but there is a narrow ground on which the case can be decided that doesn't upset anyone when the liberals have the votes for a more exapansively liberal position (such as in environmental cases, given Kennedy's sympathies there.) If Roberts only embraces incrementalism when he doesn't have the votes for a more sweeping conservative opinion, then how can he be an honest broker with the liberal justices to avoid a sweepingly liberal opinion that Kennedy might sign onto? They would say, "oh sure...now that you don't have the votes, you're asking us to decide this case on narrow grounds."
Roberts was a very shrewd mediator in this case. In this case, it didn't win any additional votes, but in cases of first blush in the future, John Roberts's fidelity to incrementalism and trying to build the largest possible majority around the narrowest possible ruling will pay off for conservatives.
Remember, with Roberts we've got 25 to 30 years to restore the Constitution. We just need to go win the next election so we can get him some more foot soldiers in this battle.
Scalia seems to think they did overrule the previous case and that Roberts and Alito wanted to look like they did not. To quote Scalia from today's opinion:
"[T]he principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation."
I have read several different views on what even constitutes overruling a prior case. Believe it or not, people disagree a great deal on this, and there is no clear answer. In a lot of cases, it can be very difficult to determine. A written opinion may deny anything is being overruled when it clearly is, at least in part. I think we've seen this in some of the other opinions in which Roberts and Alito joined. Whether "faux judicial restraint" will evolve into something else remains to be seen.
It's funny Linda Greenhouse wrote a piece just last week attacking all the reversals of precedent that have taken place since O'Connor's departure. I do think precedent should be overruled as needed to conform to the Constitution and federal law. If it happens a lot, it just means previous courts were wrong. Stare decisis, in my opinion, should be abolished, or at least greatly diminished.
Anyway, narrow rulings are good in general for judicial independence. They take away the "lawmaking" effect that courts have had for so long now. I wouldn't call it incrementalism when a case does not call for a broader ruling. A different case could just as easily have. Recall Roberts' statement that if it is not necessary to decide more of a case, it is necessary not to decide more. He has stuck to that. It just so happens the cases before him did not call for more.
If you think this was a divided ruling, you might want to look at today's decision in "Hein." It's not even clear who wrote for the majority in that one!
this much whining from the liberals on the Court can't be all bad.
Justice Souter, dissenting, at 34-35.
After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear. The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running “issue ads” without express advocacy, or by funneling the money through an independent corporation like WRTL.
But the understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will come. It is only the legal landscape that now is altered, and it may be that today’s departure from precedent will drive further reexamination of the constitutional analysis: of the distinction between contributions and expenditures, or the relation between spending and speech, which have given structure to our thinking since Buckley itself was decided.
I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today.
Although I agree with you Pat, in part, that this ruling could have gone further, this "departure from precedent" was not insignificant, and IMHO, is clearly an invitation to revisit McConnell on its face.
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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan
If the dissent believes that Roberts overruled McConnell, and the folks who want to overrule McConnell think that it was overruled, what benefit is gained, in the internal dynamics of the case or in terms of respect for the Court by Roberts and Alito's refusal to just take the plunge and be clear that they are overturning McConnell? We have less clarity in the law, with no benefit of any sort that I can see.
Justice Scalia clearly got the better of the Chief Justice, especially in the footnote exchange. Roberts and Alito were obviously straining to hold McConnell together, but the reasoning behind their effort escapes me.
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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan
Are how Roberts and Alito roll. They're not going to facially overturn a statute unless a facial challenge is all that's left standing. They're also going to apply a presumption in favor of severability, etc.
Let someone bring a facial challenge against the statute, instead of an as-applied challenge, and I'll be ready to judge on this basis. There's merit, however, to what Roberts and Alito are doing, even if it takes longer to get there.
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[F]or by the fundamental law of Nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred...
-John Locke
I agree completely. Part of judicial modesty is not issuing a more far reaching ruling than this required for the case at hand.
If the textual application of a statute arguably results in a violation of the Constitution, then it's appropriate to look at whether the statute should be overturned. If the statute's proper interpretation, that the plaintiffs should be allowed to express their opinions, does not pose any Constitutional problems, there's no need to rule on the basis of some other hypothetical plaintiff's Constitutional right to do something forbidden by the statute.
The time for a Constitutional challenge to the McCain-Feingold abomination is when a plaintiff is suing for his right to do something that the statute actually does forbid.
The problem is, this statute actually does prohibit the conduct at hand. The majority didn't interpret the statute to not apply to this conduct, they said that applying the statute to this particular conduct would be unconstitutional. The statute does apply to prohibit this conduct. They could either find the statute unconstitutional on its face or as applied. They chose the latter, which frankly goes against the weight of First Amendment jurisprudence, except in the truly messed up world of campaign finance cases.
Roberts and Alito did not interpret the statute so as to avoid reaching the constitutional problem. Rather, they took a bizarre distinction set out in McConnell (which said that while direct "electioneering" speech could be constitutionally prohibited, indirect "issue" speech could not) and applied it to these facts. This has the effect of renewing and extending McConnell. In the future, now, challenges to a ban on people coming together to spend money to say "I think you should vote for Fred in the election next week" will have not one but TWO precedents to overcome.
The problem is, this statute actually does prohibit the conduct at hand. The majority didn't interpret the statute to not apply to this conduct, they said that applying the statute to this particular conduct would be unconstitutional.
The Court ruled that the law's prohibition against mentioning a candidate in an "issue ad" near an election was unconstitutional. If that was all there was to the pre-election provision, then the it would have to be completely thrown out in order to decide this case. But the text of the statute (not some court's interpretation) says that if the prohibition on referring to a candidate in the ad is held unconstitutional, then the prohibition would only apply to a pre-election ad that:
promotes or supports a candidate for that office, or attacks or opposes 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
The content of the WRTLF ad in question clearly is allowable under this fall-back provision of the statute. I think it would take serious judicial arrogance for the Court to pretend that the ad would be prohibited by that language, just to use it as an excuse to rule on the Constitutionality of the provision.
In the future, now, challenges to a ban on people coming together to spend money to say "I think you should vote for Fred in the election next week" will have not one but TWO precedents to overcome.
The Court decided this case on a narrower point of law which did not address that issue, so there's nothing in this ruling that has any relevance as precedent for that. Apparently your disappointment is that the Court didn't rule on broader grounds which would set precedent on that question.
Here's a preview of what Rudy Giuliani's judges would be like on gun matters... President Bush never said he'd appoint judges who would overturn HIS laws...
Run like Reagan!
Rather than running roughshod over the legislature and completely reversing prior decisions, perhaps they're trying to show deference to the legislature's intent and, by moving more deliberately, giving Congress and the FEC another opportunity to find a way to pass Constitutional muster before giving the law a heave-ho by judicial fiat. It's not uncommon for SCOTUS to rule more narrowly and incremental than partisans may wish.
Judical restraint is a conservative virtue, and this is a textbook example. If we argue against judical overreach concerning Roe vs. Wade encroaching on the domain of the legislature, let's not be too aggressive about expanding judicial powers in this case.
Don't be too hasty; just because they had five votes doesn't mean that Roberts and Alioto wanted to push their slim majority on this issue; remember that Roberts particularly spoke at his confirmation hearing about building broader consensus. This decision is a good instance of getting one's way while keeping bridges in place to build a broader consensus in the future. You have to keep in mind that the goal is to win the war.
And Rightly So!