The court ruled that the Wisconsin Right to Life organization should not have been barred from running advertising urging that state's senators to support having the full Senate vote on President Bush's judicial nominees. Under the campaign law in question, such advertising was restricted because one of the senators, Democrat Russ Feingold, was up for re-election at the time.
"Discussion of issues cannot be suppressed simply because the issue may also be pertinent in an election," wrote Chief Justice John Roberts for the majority. He has a point, and it is one that makes the regulation of campaign spending a difficult constitutional task.
Previously, the high court has recognized that there is a public interest in regulating the money that flows to the benefit of public office seekers. The court understood that, left to an extreme, the flow of dollars to candidates looks less like speech and more like corruption.
The challenge, however, is that special interests have a knack for finding loopholes in campaign laws. As a result, the money continues to flow and the appearance of corruption -- and the public cynicism it engenders -- also persists.
The McCain-Feingold campaign-reform legislation was aimed at closing some of those loopholes. Before its enactment, individual donations directly to campaigns had already been capped. But "soft money" was finding its way to the coffers of party organizations in unlimited amounts.
McCain-Feingold sought to end this practice, which it did, but it also went a step further. Anticipating that special interests would try to buy influence by spending money on political advertising directly, the law put restrictions on issue ads run by advocacy groups during the campaign season.
It was this latter provision that was weakened -- though not struck down -- by the court's ruling. While three of the justices in the majority said any restriction on private expenditures during campaign season was unwarranted, Roberts and Justice Samuel Alito limited their ruling. They said only that the Wisconsin ads weren't just about campaigning and therefore couldn't be restricted.
And therein lies the constitutional difficulty. At some point, pouring money into a campaign becomes less about speech and more about buying influence. But at what point? In making those determinations, Congress and the courts should, as Roberts noted, err on the side of speech.
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