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The Supreme Court on Monday seriously weakened a key feature of the McCain-Feingold campaign finance law, possibly ushering in a new era of high court disapproval of measures aimed at reining in campaign excesses. “Enough is enough,” Chief Justice John Roberts Jr. wrote, referring to the expansion of government restriction on campaign speech that should be protected by the First Amendment. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” By a 5-4 vote, the Court said that the 2002 law’s ban on pre-election ads that mention candidates by name and are paid for directly by corporations and unions was unconstitutional � at least as it was applied to the advertisements at issue in the case before it. The ban applied during the 30 days before a primary and the 60 days before a general election. Roberts devised a new standard that would allow such ads to be banned only if the ad is “susceptible of no other interpretation than as an appeal to vote for or against a specific candidate.” The decision may represent the biggest doctrinal shift of the newly constituted Roberts Court. It came in Federal Election Commission v. Wisconsin Right to Life Inc., involving ads the Wisconsin group wanted to run in 2004 on the issue of Senate filibustering of President George W. Bush’s judicial nominees. Because the ads mentioned Wisconsin’s senators by name � and because one of them, Democrat Russ Feingold, was up for re-election � the ads would have run afoul of the law. The Wisconsin group went to court seeking an injunction to protect the ads from being banned. A three-judge panel in the District of Columbia said the advertisements were “genuine issue ads” that could not be banned. The FEC appealed to the Supreme Court. Justice Samuel Alito Jr., the Court’s other newcomer, joined Roberts in concluding that the McCain-Feingold law was unconstitutional, but only as applied to the specific ads in question. Three other justices � Antonin Scalia, Anthony Kennedy, and Clarence Thomas � agreed with the judgment but would have gone further and found the law unconstitutional on its face, not just as it pertained to the Wisconsin ads. But most analysts say the net effect of the decision is to leave the enforceability of the electioneering ad ban in serious doubt. Fred Wertheimer, president of Democracy 21, the leading strategist behind campaign reform legislation, says the decision will “once again allow corporations and labor unions to independently spend their corporate treasury funds and union dues on thinly disguised campaign ads masquerading as grass-roots lobbying ads.” Sen. John McCain (R-Ariz.) released a statement expressing regret that the Court had “carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election.” Steven Law, chief legal officer of the U.S. Chamber of Commerce, which opposed the restrictions imposed by McCain-Feingold, says, “This decision is a clear vindication of the rights of all Americans � including the private sector � to speak out and publicly petition their government.” The ruling represented another in a series of losses for the Court’s liberal/moderate wing as the Court nears the end of its term. On Monday, it was Justice David Souter’s turn to read a dissent from the bench, following in the footsteps of Justices John Paul Stevens and Ruth Bader Ginsburg, who have read dissents aloud in recent weeks. Souter said mournfully that the majority had “effectively and unjustifiably” overturned the Court’s decision of just four years ago, which upheld most of the McCain-Feingold law. Souter said that under the Roberts standard, even an ad that includes the “magic words” urging the public to vote for or elect a specific candidate could be allowed if it also contains mention of an issue. “We really can’t say for certain” whether Souter is right, says New York University School of Law professor Richard Pildes, who also says Monday’s ruling represents a “sea change” on the issue of election reform. Conservatives have long viewed comprehensive campaign finance reform laws as an infringement on core political speech at a time when that speech is most important: before elections. But the Court’s liberals, usually joined by one or two others, have generally upheld most campaign finance regulation in recent years, most extensively in the Court’s McConnell v. FEC decision in 2003. But with Roberts now leading the Court, joined by Alito replacing Sandra Day O’Connor, that conservative skepticism achieved a majority. Monday’s ruling “has revealed the Roberts Court, as I have feared, as moving firmly into the deregulationist camp,” said Loyola Law School Los Angeles professor Richard Hasen on his Election Law blog. Scalia, Kennedy, and Thomas would have gone even further than their colleagues and overturned the 2003 McConnell decision altogether, or at least that part of it that said the electioneering ad ban was not unconstitutional on its face. Scalia declared the 2003 decision “a flop” that has done nothing to stem the flow of money into campaigns. “The effect of [McCain-Feingold] has been to concentrate more political power in the hands of the country’s wealthiest individuals,” wrote Scalia, citing the growth of unregulated so-called “527 organizations” that have proliferated in recent years. Scalia was also unbothered by the prospect of overturning such a recent Supreme Court precedent. “Overturning a constitutional case decided just a few years earlier is far from unprecedented,” Scalia said, noting that in the First Amendment area, the Court in 1943 ruled that students could not be forced to recite the Pledge of Allegiance � reversing its decision to the contrary reached just three years earlier. In a day dominated by First Amendment rulings, the Court also issued: • 

Morse v. Frederick, a 6-3 decision giving school administrators more leeway to censor student speech that advocates drug use. • Hein v. Freedom From Religion Foundation, a 5-4 decision that denies taxpayer standing to groups and individuals challenging the Bush administration’s support for faith-based initiatives.

Tony Mauro can be contacted at [email protected].

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