Supreme Court Upholds the Right to Criticize Politicians


Depending on which account is correct, the Supreme Court has either struck down the Bipartisan Campaign Reform Act's restrictions on independent ads that mention federal candidates or ruled that the restrictions cannot be applied to three ads sponsored by Wisconsin Right to Life without violating the First Amendment. (The decision is not available online yet.) Either way, it's good news, since the attempt to squelch "sham" issue ads by prohibiting interest groups from running spots that refer to politicians close to elections had a clear impact on their ability to speak their minds on the issues that matter most to them at the times when people are paying the most attention.

discussed this case last fall. So did Nick Gillespie. Matt Welch, Jonathan Rauch, and Bradley Smith on BCRA, a.k.a. McCain-Feingold, herehere and here, respectively.

Update: A PDF of the decision is here. The main holding is that BCRA's ad restrictions are constitutional only insofar as they apply to "express advocacy" or its "functional equivalent." The Court concluded that Wisconsin Right to Life's ads, which urged people to contact their senators (including one who was up for re-election) about the confirmation of judicial nominees, did not constitute either. The majority said "a court should find that an ad is the functional equivalent of 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." To put it another way, BCRA's pre-election blackout cannot be constitutionally applied to a spot that reasonably can be viewed as an issue ad, which means interest groups are once again free to engage in public policy debates on the air, no matter what time of year it is.