The Supreme Court Speaks
By Pejman Yousefzadeh Posted in Featured Stories | Law — Comments (1) / Email this page » / Leave a comment »
The Supreme Court handed down a spate of decisions today. They are well-summarized here. I am quite pleased with the way in which Federal Election Commission v. Wisconsin Right to Life was decided since it enhances speech protections that should never have been curbed in the first place by McCain-Feingold. Speaking of which, I believe that the analysis found here is both reassuring and on the mark:
Finally, at the level of holding, the Court essentially - albeit only unofficially - overturns McConnell's judgment upholding BCRA's definition of "electioneering communication" and substitutes BCRA's "backup" definition - the definition that McConnell declined to reach. That is the only possible interpretation of a decision that creates an as-applied exception whenever an ad "may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate." This is no mere as-applied exception but an effective gutting of the law. Indeed, Chief Justice Roberts's language is the "functional equivalent" of the BCRA backup definition's requirement that an ad be "suggestive of no other plausible meaning other than as an exhortation to vote for or against the federal candidate." The seven concurring and dissenting justices agree that the backup definition is now, de facto, the law. The constitutional definition of election-relatedness has been moved back towards where it stood before McConnell, with a large dollop of vagueness thrown in,
Although the Roberts opinion tries to hold together McConnell's rejection of a facial challenge to the electioneering communication restriction with the creation of a sweeping as-applied exception, the exception will surely devour the rule.
(Via Adam C.)
At the same time, perspective is called for. While this term shows that the Court has taken a conservative direction, today's cases are perhaps a little less philosophically extraordinary than meet the eye. Stephen Bainbridge properly notes the impressive result and far-reaching impact of Wisconsin Right to Life but as for the other cases, the rulings were either relatively narrow, entirely expected or less pleasing to conservatives than many might initially believe.
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