The Chief Justice took this one for himself, writing for the 5-4 majority that Wisconsin Right to Life had established a constitutional right to air grassroots lobbying advertisements, paid with corporate funds, during the 30 and 60 day pre-election periods ostensibly cleared of this spending by McCain Feingold. The majority stopped short, just short, of putting an end to the electioneering communication provision of the law that is the source of this ban.  Perhaps this is for another day; Justice Souter, vigorously dissenting, believes that that the day has already come.  Proponents of this reform will look for traces of hope; their work is more than made out for them, and it will be hard work indeed.

   More may be posted here today, certainly more tomorrow, on further readings of what the Court today issued: the Souter dissent, and the disagreement between the Chief Justice and Justice Scalia, who voted with him on the result, about the effectiveness of the  standard adopted in the Court’s Opinion to protect issues speech.   But in the meantime, there are specific points immediately apparent about the sweep of the majority opinion.

   1. It is striking how Chief Justice highlights that violations of the provision in question is potentially a crime.  This is how the opinion opens, (1), and it is mentioned again (14): it sets the tone for what follows, including a closing reaffirmation of the quasi-absolutist language of the First Amendment itself.  The Chief Justice concedes that the Amendment has not been read in absolutist terms, while at the same time suggesting that the Amendment’s emphasis—that Congress shall make “no law” abridging freedom of speech—is the appropriate starting point for analysis. (29)

   2.  It follows from this, the Chief Justice states, that when in doubt, the interests of speech must take precedence: “we give the benefit of the doubt to speech, not censorship.”  (Id) This point is introduced on several occasions, and its significance to the standard articulated by the Court becomes clearer when considering it in its particulars.

   3. The Court establishes a framework for its standard, by rejecting a test based on the intent of the speaker or the effect of the speech.  The test, the Court’s  opinion states,  must be a) “objective, focusing on the substance of the communication; b) “entail minimal if any discovery to allow parties to resolve disputes quickly without chilling speech…”; and c) avoid a slew of decisional factors, described by the Court as threatening speech and giving the “benefit of any doubt” to protecting it. (16)

   4. The specific standard is whether there is any  reasonable interpretation of an ad other than that it is an appeal to vote for or against a specific candidate. (16)  Here the “tie goes to speech” formulation—excluding consideration of either effects or intent—demonstrates the heavy blow the Court has dealt to the interpretation of the law advanced by its defenders.  And this is where the Chief Justices does not go as far as Justice Scalia would have liked, gesturing toward the scope of protection the Court has in mind without quite building it into the statement of the standard itself.

    5. To answer Scalia’s concern that the protection for issues speech, as Scalia would have it, is not sufficiently clear, the Chief Justice offers this emphasis, in a footnote:

(a) Intent and effect do not count against otherwise protected speech
(b) Timing—the running of the ad close to an election—cannot be held against the speech and used to weaken its protections.
(c) The relevance of the issues to an election also does not weaken those protections;
(d) Where the question is close or “debatable”, the “the tie is resolved in favor of protecting speech.

( 21, n.7)

   I will stop there, except to point those who have closely followed this law and this case to the Court’s commentary on the evidence on which the McConnell Court relied, and specifically the Buying Time study which purported to draw the line between speech and issues advertising on the basis of student coding. (12-13).  Here is one clue to the changes taking place on this Court in the field of campaign finance.  Or as the Chef Justice states, elsewhere in the opinion,  the majority seems to be saying: "Enough is enough". (25)