Thursday, March 26, 2009

The Supreme Court appears poised to once again scale back the convoluted McCain-Feingold campaign finance law in the face of a clear challenge to its constitutionality. We could not be more pleased, but the time for popping the champagne corks at the pending death of Congress’ unwieldy attempt to restrict election speech is probably not quite upon us.

In uncommonly entertaining arguments before the court Tuesday, the justices were asked to decide whether a 90-minute film attacking Hillary Clinton during campaign season should be considered the same as a 30-second attack ad. At issue is the Federal Election Commission‘s restriction during the 2008 Democratic primary on airing and advertising “Hillary: The Movie” on cable and satellite television. The broad questions for the court are whether the film is political speech deserving of the highest level of First Amendment protections, and just how far the Federal Election Commission can reach in restricting election speech.

The film was produced by the conservative non-profit Citizens United. The group, which has corporate backing, had no problem distributing the film in theaters or on DVD. But when it decided to push it on cable and satellite via an on-demand service, it ran into the FEC, which banned the movie for violating advocacy limits under the law.

It did not expressly say to vote against Clinton but made about as vehement a case against her political career as can be imagined. Functionally, the law bans groups with corporate sponsorship, including unions, from electronic electioneering 30 days before a primary or 60 days before an election. A lower court upheld the FEC restriction.

But is it really a problem, much less constitutional, to stop the film from being distributed to someone who chooses to see the film via their cable box? Not in our book.

Deputy Solicitor General Malcolm Stewart’s argument before the court on behalf of the Federal Election Commission that the government could use the law to stop the distribution of election-related books, electronic media to an Amazon Kindle reader, and even ads for action figures representing candidates for federal office if they are paid for by corporate funding, is incredibly disconcerting.

Do we really want the government telling us what we can see and read, whatever the source and medium? Again, not in our book. The idea that such a hypothetical could even be considered by the court shows the unconstitutional nature of the law and need for court intervention.

Whether the court will ultimately intervene and to what extent remain uncertain. But the justices certainly seem inclined to do something to restrict the FEC from continuing such staggeringly illogical efforts. The government’s broad interpretation to include potential restrictions on books invites a wholesale repeal of the law, something that was evidently on the minds of the justices during arguments.

Prominent swing vote Justice Anthony Kennedy noted that finding the law inapplicable to the film would mean its application to 30-second ads would be unconstitutional as well. Kennedy also noted that a 90-minute attack is arguably more powerful a message about a candidate.

The particularities of this case mean it is not necessarily the one to result in McCain-Feingold being overturned in toto. But the debate over the case shows that it is only a matter of time before the Supreme Court will fully address the First Amendment failures of the law. Then the issue may be what Congress comes up with to replace it.

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