Chief Justice Roberts Undoes Limits on Electioneering

Monday, June 25, 2007 at 09:21 PM

Want to see how much damage an activist judge can do to a bipartisan law? Check out Chief Judge Roberts' opinion in FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, INC.

Here's the crux of the case, verbatim from the opinion:
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), makes it a federal crime for a corporation to use its general treasury funds to pay for any electioneering communication,2 U. S. C. section 41b(b)(2), which BCRA defines as any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running, section 34(f)(3)(A).


On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL), began broadcasting advertisements declaring that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster. WRTL planned to run the ads throughout August 2004 and finance them with its general treasury funds. Recognizing, however, that as of August 15, 30 days before the Wisconsin primary, the ads would be illegal “electioneering communication[s]” under BCRA §203, but believing that it nonetheless had a First Amendment right to broadcast them, WRTL filed suit against the Federal Election Commission (FEC), seeking declaratory and injunctive relief and alleging that §203’s prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future.

It might seem from first glance that the ads clearly violate the letter of the federal election law. But that just means you don't have the insight and acuity of the Chief Justice, who instead ruled that (emphasis added):
In light of these considerations, a court should find that an ad is the functional equivalent of [the prohibited] express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL's three ads are plainly not the functional equivalent of express advocacy under this test.
Roberts justifies this conclusion, to the extent that he justifies it at all, on the concept that the law is limiting free speech, so must be interpreted so as to "give the benefit of any doubt to protecting rather than stifling speech."

Noble sentiment, but one that doesn't give a whole lot of credence to the language or intent of the law. And the law's base constitutionality has already been upheld.

Under Roberts' approach, just about any electioneering in the period just before elections will be okay, as long as you have a media consultant with an IQ over 10. If the WRTL ads which specifically mention two Senators in a clearly implied negative light are okay, EVERYTHING will be okay.

Let he who has the money control the election, with no confounded interference from congress, common sense, or attempts to preserve democracy. Damned activist judges.