[SEE PAUL LEHTO’S COMMENTARY BELOW*]
CLG Newsletter editor: Lori Price, Manager. Copyright (c) 2007, Citizens For Legitimate Government (r) All rights reserved. CLG Founder and Chair is Michael Rectenwald, Ph.D.
*FROM PAUL LEHTO:
This morning the US Supreme Court ruled in a case called FEC v. Wisconsin Right to Life. 551 U. S. ____ (2007).
The issue was whether “issue advocacy” ads during a political campaign season that do not expressly identify a particular candidate (but which may nevertheless be highly identified with a particular candidate running for office) can be regulated consistent with the First Amendment (as CANDIDATE ads can be). The BCRA had so regulated these types of ads, and the FEC sued an organization called Wisconsin Right to Life over an issue ad in the 2004 election. The issues before the Court is whether the First Amendment protected essentially unlimited issue-based advertising even though during campaign season (unlike candidate ads, which the Court has approved regulation of), and whether the case was moot because the 2004 election was over.
The Court Ruled:
In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.
We conclude that the speech at issue in this as-applied challenge is not the functional equivalent of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA Â§203 is unconstitutional as applied to the advertisements at issue in these cases .
Although analysis of this case is breaking as we speak, and many haven’t finished reading the opinion yet, based on the briefing and analysis prior to the case, this holding appears to portend a relatively massive de-regulation of “issue ads” by corporations and interest groups. The more money one has, the more unlimited one’s influence can be on campaign ISSUES so long as they don’t mention campaign CANDIDATES. Money=speech, and that “speech” is now essentially unlimited as to issues.
Because this ruling is based on an interpretation of the requirements of the First Amendment, the US Supreme Court is the “final authority” on such things and there’s little or nothing Congress can do about it, other than find a way around the opinion, if any.
This is a watershed legal ruling on campaign finance that dramatically reinforces functional inequities of speech and opportunity whereby those with money can have basically unlimited EXPENDITURES even in campaigns so long as issue advertising methods are chosen, while those who need to raise money (Candidates) are significantly limited in terms of CONTRIBUTIONS they can accept, and the relatively small caps on those contributions ensure that politicians who are NOT rich must spend massive amounts of time fundraising from many individuals. While we may all agree that broad public support as evidenced by many contributors is a good thing, that policy, in the new context of unlimited issue-based attacks, will also come under heavy pressure to fall even from those who tend to believe in it, in order to free up the funds to defend against unlimited issue-based attacks.
Attorney at Law