A Setback for McCain-Feingold?

On the same day that the Supreme Court imposed a new limit on students' free speech in the Bong Hits 4 Jesus decision, the Justices ruled the opposite way in another first amendment case, protecting the rights of corporations and unions to shell out money for political ads shortly before an election.

That may sound sweeping, but it's hard to know exactly what to make of the 5 to 4 decision, with the majority opinion also written, as in the Bong Hits case, by Chief Justice John Roberts. It seems to put a significant chink in the McCain-Feingold campaign finance law, and advocates for limiting campaign spending say it will draw a flood of corporate cash to TV spots pushing one candidate or another. But the decision is also very narrow, meaning it may well preserve the overall impact of McCain-Feingold and doesn't necessarily justify predictions of the end to spending restraint. As with the Bong Hits case, it also starts to show the ideological limits of the Roberts Court, where the President's two appointees, Roberts and Samuel Alito, are less open to sweeping legal change than their counterparts on the right, Antonin Scalia and Clarence Thomas.

Although it will serve as precedent in similar situations, the campaign finance decision applies only to three TV ads that Wisconsin Right to Life Inc. wanted to run in 2004 opposing filibusters of President George W. Bush's judicial nominees. The ads named Wisconsin's two senators and urged viewers to contact them about the issue. One senator�Democrat Russ Feingold�was up for reelection. Since the McCain-Feingold law bans corporations and unions from spending their money (as opposed to money from a separate political action committee) on ads that name candidates 30 days before a primary or 60 days before a general election, Wisconsin Right to Life figured it had a problem.

It need not have worried.

Joined by Justice Samuel Alito, Roberts says the organization's ads could reasonably be seen as opposing the practice of filibustering, rather than the candidacy of Feingold, so they therefore past constitutional muster. (Wisconsin Right to Life won't use the old ads, obviously, but at least now it knows what it can say in new ones.) It's only when an ad is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" that McCain-Feingold kicks in, Roberts says.....