"In short, this is precisely the sort of cantankerous political speech that ought to be protected under the First Amendment. The problem is…"

As Jacob Sullum has previously discussed, the Supreme Court heard arguments last term in the case of Citizens United v. Federal Election Commission. At issue was the 90-minute documentary Hillary: The Movie, which was produced by the conservative group Citizens United and intended for distribution before the 2008 elections. This would have been illegal under the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold), however, which bars corporations and non-profit organizations (such as Citizens United) from sponsoring "any broadcast, cable, or satellite communication" that mentions a candidate in a federal campaign within 30 days of a primary or 60 days of a general election.

In an unusual move, the Court decided to rehear oral arguments, scheduling them for September 9, which is a few weeks before the next term officially kicks off. Earlier this month in The Washington Post, liberal columnist Ruth Marcus offered an astonishing case for why the Court should gut the First Amendment and restrict political speech:

In short, this is precisely the sort of cantankerous political speech that ought to be protected under the First Amendment. The problem is that for purposes of federal election law, Citizens United is treated the same as Wal-Mart because it is a nonprofit corporation and it takes corporate as well as individual donations.

We don't want Wal-Mart—at least I don't—using its purchasing power to buy elections, and we don't want Wal-Mart funneling money to a nonprofit proxy. But how to keep Wal-Mart out of the candidate-electing business while protecting the speech of ideological groups?…

The smart, not to mention judicially restrained, approach would be for the court to take one of several available escape hatches, much as it did in avoiding a final verdict on the constitutionality of the Voting Rights Act. It could say that because Citizens United took such a small amount of corporate money, it should not be subjected to the same rules as a regular for-profit corporation. (This is already true for ideological nonprofit groups that don't take any corporate funds.) It could say an on-demand video is not the same as a commercial.

So much for taking rights seriously!

Here's a little something Marcus forgot to mention: During oral arguments last term, the government openly admitted that the same precedent allowing this suppression of political speech would logically apply to the publication and distribution of books. Perhaps she'll suggest a few more "escape hatches" when that time comes.

And what about her talk of judicial restraint? She may think that she's trapped the Court's conservatives (and conservatives in general) with their own famous attacks on judicial activism. But even the biggest foe of "judicial tyranny" still thinks that a specifically enumerated constitutional provision (the First Amendment, look it up) should trump a lousy federal law. By striking down this portion of McCain-Feingold the justices won't be "legislating from the bench," they'll be doing their constitutional duty.