I love how the media deems worthy of attention approximately one out of every fifty Supreme Court decisions. The others, about which we hear nothing, simply must not be important.

On June 25, FEC v Wisconsin Right to Life was decided with little fanfare. And by little I mean none. Rest assured that the 5-4 Alito-led majority (and the Court is handing down an unsurprisingly large number of 5-4 decisions these days) struck a blow against those dastardly, overbearing campaign finance laws that have virtually eliminated money from our elections. Remember the 2004 elections, where both presidential candidates spent over a quarter of a billion dollars? I tell ya, you can barely sneak a red cent past our ironclad campaign finance laws.

Interestingly, I agree with the specifics of the case in question. WRTL intended to run a series of "issue advocacy ads" (which do not advocate voting for or against any particular candidate) within 30 days of the 2004 election. McCain-Feingold (referred to in the decision by its formal name, BCRA) prohibits "electioneering communication" by corporations or private interests in the month prior to the election. Between 1976 (Buckley v Valeo) and the BCRA (2002), political action committees and other organized interests skirted most campaign finance laws by running carefully-worded "issue ads" that made a position quite clear but avoided using "magic words" (i.e. vote for, vote against) which would have qualified them as an electioneering communication. So, for example, the UAW would run an ad talking about how amazing Bill Clinton is, but it would avoid using the words "Vote for Clinton" and therefore skirt the laws.

BCRA attempted to eliminate this loophole by forbidding ads that were the "functional equivalent" of electioneering. The WRTL ads in question, in my semi-qualified opinion, do not constitute a functional equivalent. The ads encourage voters to contact their Wisconsin Senators to oppose a filibuster of judicial nominees. One of the Senators (Kohl) was not even running, and Feingold had a token opponent whose name was not used in the ad. So WRTL, the lower courts decided, had a right to run the ads up to the date of the election and beyond. The SC affirmed that decision, and rightly so.

But Anton Scalia has mastered the judicial equivalent of the President's "signing statement" theory of decision-making. It's never enough to affirm or reverse a decision – he has to go on a 20-page concurring opinion (read: rant) about how the case responsible for the relevant precedent at hand was "wrongly decided." Some enterprising researcher would find "wrongly decided" and "Scalia" about 100 times by searching every written opinion since 1986 (Scalia Year Zero).

Here ol' Anton decides to stretch his legs and explain why McConnell v FEC (one of the few decisions to substantially limit, in any way, the right to piss money into elections) was such an abomination of justice. Anton is never content to stick to the merits or particulars of the case at hand. No, he can't pass up a chance to re-write or re-interpret past decisions and explain how stupid it is to treat precedent with any respect (unless it tells him what he wants to hear, in which case he cites it as a stamp of authenticity).

Most reasonable people would argue, as we look back at a $1.2 billion dollar Presidential race and gaze hopefully forward at our first $2 billion-plus race in 2008, that unfettered corporate soft money expenditures outside of the obscene amounts they can legally spend as "hard" money have a deleterious effect on the democratic process. As the Court stated in Austin v Michigan CoC (1990), the state has a legitimate interest in limiting "corrosive and distorting effects of immense aggregations of [corporate] wealth.


  • To be fair, the NY Times's lead editorial yesterday lambasted the SC's decision on FEC v. Wisconsin RTL. That's at least *some* fanfare, especially since most people read the Times solely for the editorial content–same reason they watch Fox–to have their preconceived notions confirmed…

  • Also, the recent "Bong hits 4 Jesus" decision is much sexier (umm, makes for better headlines) and is also less complicated. So in the event that the press is going to pay any attention to an SC decision (and they rarely do), that one is going to get more ink.

    It has drugs, religion, and children – three of the top obsessions of our culture!

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