Supreme Court To Hear Two Major First Amendment Cases

Via SCOTUSblog comes word that the U.S. Supreme Court has agreed to hear appeals in two cases dealing with challenges to the McCain-Feingold law’s restriction on advertising by third-parties within 60 days of an election:

Returning to the much-litigated controversy over political campaign ads broadcast during election season, the Supreme Court on Friday agreed to rule on two cases that newly test the constitutionality of congressional curbs on such ads. In a brief order, the Court granted review of Federal Election Commission v. Wisconsin Right to Life (05-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The cases were consolidated and expedited so that the cases can be heard and decided during the current Term — well in advance of the opening of the presidential campaign in 2008. Because there is a potential issue of mootness in the case, the Court postponed a decision until the hearing on whether it does, indeed, have jurisdiction to rule.


The campaign ad cases are sequels to the Court’s 2003 decision upholding the ban on so-called “electioneering communications.” However, it made clear in a summary ruling a year ago that that decision involved only a facial challenge and “did not purport to resolve future as-applied challenges.” The new appeals involved just such as-applied challenges, to the threat of FEC prosecution of Wisconsin Right to Life over three ads that group prepared to air during the 2004 senatorial campaign. A three-judge U.S. District Court in Washington, D.C., in a decision Dec. 21, ruled that the “electioneering communications” ban was invalid as applied to those specific ads.

The ban forbids corporations and labor unions from using their own in-house funds to pay for broadcast ads that mention in any way a federal candidate, if the ad runs 30 days before a primary election or 60 days before a general election. Wisconsin Right to Life’s planned ads would have mentioned Wisconsin Democratic Sen. Russ Feingold, who was running for reelection in 2004, in ads that discussed Senate filibusters of judicial nominees.

How this could not be a violation of the First Amendment escapes me completely.

  • Free speech for people

    Why corporations are allowed free speech escapes me completely also.

  • David Moore

    This news givs me hope. The fact that McCain-Fiengold came into being shortly after Mssrs McCain and Feingold’s own heated battles with 3rd party activist groups demonstrates the need to protect free speach from any politician looking to prohibit it. Especially when such attempts are wrapped in the guise of “perserving the integrety of our Republic”. This is tantamount to “destroying the village in order to save it.”

  • David Moore

    Corporations are allowed free speach because they are legally recognised as individuals able to own property and sue in court. Would you rather the government imposed judgement as to which individuals are entitled to constitutional protection and which need not such fundemental rights. I thought our republic had moved passed such attempts to limit the rights of individuals. Such attempts at regulating who actually gets to exercise their rights were employeed quite successfully in the past to prevent women and blacks from voting, the irish from unionising and italians from owning property. Laws must be applied equally and the rights of all protected our republic could find itself slipping quickly towards despotism.

  • Ken McManaman

    Corporations are not always “persons” entitled to protection under the Bill of Rights, specifically the 1st and 14th Amendments (which allows selective incorporation by the states) to the US Constitution. A corporation is normally considered, in law and in equity, as a “legal fiction” and, if this is the usually definition, how can it be construed as a “person” entitled to first amendment protection in political fundraising matters?

  • Al

    I don’t feel that any corporation should have any say on matters of political opinion or social decision. I also feel that “not for profit” organizations should be influencing government in any way either. I’m sure WI Right To Life is a for profit action anyway so the ads in question should follow the same standards as any other corporation.

  • Vogue

    While I certainly think there is valid concern as to whether a corporation should be considered under the same rights as a person, this really only goes to show that we need further definition on rights. Not to say that a business/entity bill of rights wouldn’t be further proof that the government must regulate everything, even in a republic. But honestly, isn’t this America? Land of the free? Home of the brave? Where capitalism is the final frontier? In support of a true capitalistic democratic republic, those with the money SHOULD be able to throw it around how ever they wish (legally of course)! That said, I don’t really have any money, so I will just bow out and keep the rest of my opinions to myself until the day I develop my own Microsoft, create my own Myspace website, or find a way to profit on some other poor Joe’s hard work and dedication. :o)

  • Mike D

    “Would you rather the government imposed judgement as to which individuals are entitled to constitutional protection”

    The larger threat to individual liberty today is from corporations, not against them (vis a vis baby bells cooperating with illegal phone record collection, patents on DNA, etc). No doubt, corporations are essential in our society and must be protected from tyranny, but they are certainly NOT people. People have inalienable rights, corporations do not.