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U.S. Supreme Court

Changed Court Weakens Campaign Law

Posted Jun 26, 2007 7:38 AM CDT
By Debra Cassens Weiss

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The Supreme Court’s 5-4 decision yesterday weakening restrictions on campaign spending shows the influence of new justices.

Chief Justice John G. Roberts Jr. wrote the majority decision finding the restrictions unconstitutional as applied to issue ads by an anti-abortion group. Justice Samuel A. Alito Jr. fully joined his opinion, the only justice to do so. Both are President Bush’s appointees, Linda Greenhouse and David D. Kirkpatrick point out in the New York Times.

The portion of the law before the court banned corporate or union-sponsored broadcast ads mentioning candidates by name in the weeks before elections. Wisconsin Right to Life had run pre-election ads asking voters to contact their state senators to oppose a filibuster of court nominees, naming a senator who was running for re-election.

Roberts said the only ads that could be banned under the law must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

“Where the First Amendment is implicated,” he wrote, “the tie goes to the speaker, not the censor.”

The court had upheld the campaign law in 2003 in McConnell v. FEC. Then-Chief Justice William H. Rehnquist was in the dissent, the Times says. And the justice whom Alito replaced, Sandra Day O’Connor, was in the 5-4 majority that upheld the law.

Three other conservative justices said they would have overturned the earlier decision. Alito wrote separately to say he would be willing to reconsider McConnell in a future case, the Times reports.

Justice David H. Souter read a dissent from the bench, Tony Mauro writes in his Legal Times story. Souter said the court had "effectively and unjustifiably" overturned McConnell, a point with which Justice Antonin Scalia agreed in a footnote to his separate opinion.

“This faux judicial restraint is judicial obfuscation,” Scalia wrote.

The ruling is in two consolidated appeals: Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, Nos. 06–969 and 06–970 (PDF).

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