Fears on Wisconsin Right to Life

With time running out on the Supreme Court's calendar, and no decision issued yesterday in the Wisconsin Right to Life case, the media are all atwitter with concern that the Roberts Court over turn the precedentsranging from abortion to anti-trust and of course campaign finance.

While briefly mentioning a series of issues that the Court has or will no doubt address in the near future, the NY Times' Linda Greenhouse seems to indicate that the Robert's Court will overturn precedent on the sly.

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling still on the books, doing its overruling “by stealth, without having the grace to admit that is what they were doing,” in the words of Ronald Dworkin, the legal philosopher, who wrote a highly critical appraisal of the new decision in The New York Review of Books last month. “Justices Roberts and Alito had both declared their intention to respect precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon how little those declarations were worth,” Professor Dworkin said from London in an e-mail message.

The proposition that the Supreme Court can do anything "by stealth" is laughable on its face given the plethora of opinions about Court opinions that fly in the wake of a decision. But Greenhouse's question about the standards the Roberts Court would use to overturn precedent are an important question.

When it comes to the WRtL case, one would hope that the standard that applies would come from the First Amendment, "Congress shall make no law...abridging the freedom of speech." As Bob Bauer put it, the electioneering communications ban, which prohibits corporations or unions from referring (even with a picture) to any federal candidate withing 30 days of a primary or 60 days of a general election,

These prohibitions were, themselves, without precedent: on their face, they represented an extraordinary expansion of federal authority to regulate speech in order to control "campaign finance." Every aspect of the development and advocacy of this measure was hotly controversial—from the squabble over the Buying Time study to the casual jurisprudence by which the 5-4 Court majority decided the issue.

The McConnell decision was far from a clear piece of jurisprudence. With a sharply divided Court and no fewer that six published opinions, with a range of concurrences, dissetns and concurrences in dissent, there were few nuggest of clean and clear law to be derived.

The electioneering communications ban itself was subject to a variety of opinions. Justice Roberts has noted:

"The electioneering broadcast ban is now face to face with its own inflexibility. To function constitutionally, it must admit exceptions; to admit exceptions, the government argues, puts the law in peril of collapse."

so the question becomes, are the ads in question truly speech and if so, should there be any regulation of that speech in the form of restrictions due to concerns about campaign finace.

Clearly the campaign finance reform community is on the ropes with the matter. Any inflexibility on the matter will trigger the constitutional prohibition against infringing on the freedom of speech for there does not appear to be a compelling governmental reason to ban this acitivity. On the other hand, "as applied" challenges may become the exception that eats rule. Where to go and what to do.

Should the Court "overrule" McConnell and allow as applied challenges to the electioneering communications, there will be much handwringing an wailing amoung the reform community. But there will be an educated electorate--a far better governmental interest than anything else.