WASHINGTON (BP)–The U.S. Supreme Court’s Dec. 10 ruling upholding the major provisions of a campaign finance reform law dealt a major blow to free-speech rights, critics of the legislation said.
The justices voted 5-4 in favor of the pre-election “issue ads” and “soft money” sections of the 2002 Bipartisan Campaign Reform Act. The high court, however, unanimously struck down a provision barring minors from contributing money to election campaigns.
The law — commonly known as McCain-Feingold for its two Senate sponsors, John McCain, R-Ariz., and Russell Feingold, D-Wis. — revised the rules by which political campaigns are funded. It included a prohibition on political parties receiving and spending “soft money” for federal elections. “Soft money” consists of contributions by corporations, unions, organizations or individuals to state political parties that have been used to finance campaigns by candidates.
The portion of the law that elicited strong opposition from a variety of advocacy groups prohibits some organizations from broadcasting ads that include references to candidates in time periods prior to elections. The “issue ads” section bars organizations classified as 501(c)(4) by the Internal Revenue Service from financing television or radio ads that include the name of a candidate, including a member of Congress, for 60 days before a general election and 30 days prior to a congressional primary.
Conservatives and liberals decried the opinion.
“The Supreme Court’s ruling is a disaster for Americans’ First Amendment guarantee of freedom of speech,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
“It took the majority 119 pages of legal contortions and acrobatics worthy of a three-ring circus to try to justify that ‘Congress shall make no law … abridging the freedom of speech’ doesn’t mean what it says,” Land said, citing the First Amendment. “In honor of truth in advertising, this decision should be described as the ‘incumbent protection decision.'”
Jay Sekulow, the American Center for Law and Justice’s chief counsel, said in a written statement, “By upholding the constitutionality of the law’s advertising ban, advocacy groups will be effectively shut out of being able to express their opinions and views on the moral and cultural issues that play a key role in elections. The free-speech rights of minors were protected, but the free speech rights of other Americans suffered a serious setback with this decision.”
Anthony Romero, executive director of the American Civil Liberties Union, said in a written statement, “The notion that the government can tell an organization like the ACLU when and how it should address important civil liberties issues is a form of censorship masquerading as campaign finance reform.
“Today’s decision will do far more to restrict political speech than to curtail the influence of money on politics,” Romero said. “More speech should not be seen as a threat to our democracy, but, sadly, that is the message of the court’s decision.”
In addition to the ERLC, ACLJ and ACLU, other opponents of the law were the National Right to Life Committee, Family Research Council, Christian Coalition, American Conservative Union, Americans for Tax Reform and the National Rifle Association.
Messengers to the 2001 Southern Baptist Convention adopted a resolution that opposed any campaign finance law “that hinders or abridges free speech.” As the measure worked its way through Congress the next year, the ERLC’s Land asked President Bush to veto it.
Bush, however, signed the bill into law while acknowledging it presented “some legitimate constitutional questions.”
Land said after the high court’s ruling, “In signing this law, the president gambled that the Supreme Court would strike down many of its unconstitutional restrictions on freedom of speech. Unfortunately, he lost the gamble, and we’ve lost important freedoms to criticize our own government.”
Other specific objections expressed by opponents of the “issue ads” ban included:
— A fall-back measure from the “issue ads” ban that prohibits at any time a broadcast ad that “promotes” or “attacks” a candidate and is considered to be “suggestive” of a vote for or against a candidate.
— A section that bans communications year-round from advocacy groups determined to be in coordination with a member of Congress, with no “agreement or formal collaboration to establish coordination” required.
In the majority opinion, Associate Justices John Paul Stevens and Sandra Day O’Connor said the law would have a minimal effect on speech. They supported dropping the distinction between “express advocacy,” which includes messages that expressly endorse election or defeat of a candidate, and “issue advocacy,” which stops short of an explicit endorsement.
Stevens and O’Connor wrote that they are not convinced “the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy.” Although issue ads “do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election,” they said.
Joining Stevens and O’Connor in the majority opinion on “soft money” and “issue ads” were Associate Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. Dissenting on those provisions were Chief Justice William Rehnquist and Associate Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
In a dissenting opinion, Scalia called it a “sad day for freedom of speech.”
“Who could have imagined that the same court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography … tobacco advertising … dissemination of illegally intercepted communications … and sexually explicit cable programming … would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government,” Scalia wrote. “For that is what the most offensive provisions of this legislation are all about.”
The court’s ruling “leaves us less free than before,” Kennedy wrote in his dissent. “Today’s decision breaks faith with our tradition of robust and unfettered debate.”
Land said, “If we want true campaign finance reform, we should pass laws that require full and timely disclosure of all contributions from all sources that sponsor political speech. That way people are free to spend their money promoting their political views, which until now was guaranteed under the Constitution. Voters would know who is paying for what and supporting whom, and make their electoral decisions accordingly.”
The ACLJ’s Sekulow called the decision in favor of political contributions by young people under 18 an “enormously important First Amendment victory.”
In oral arguments before the high court in September, Sekulow represented six politically active teenagers from Alabama, Georgia and Florida.
Oral arguments in the case were unusual in at least two respects. They were held Sept. 8, weeks before the traditional October date for the first arguments of a term. They were four hours long, when arguments normally are only an hour in length.