"Enough is enough"

It's going to be a long generation of Supreme Court incomprehensibility in service of the conservative ideological agenda:

In a splintered 5-to-4 decision, Chief Justice John G. Roberts Jr. said that as interpreted broadly by federal regulators and the law’s supporters, the restrictions on television advertisements paid for from corporate or union treasuries in the weeks before an election amounted to censorship of core political speech unless those advertisements explicitly urge a vote for or against a particular candidate.

“Where the First Amendment is implicated,” the chief justice said, “the tie goes to the speaker, not the censor.”

Consequently, Chief Justice Roberts said, the only advertisements that can be kept off the air in the pre-election period covered by the law — the 30 days before a primary election and the 60 days before a general election — are those that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Describing and then dismissing the rationale for the advertising restrictions, Chief Justice Roberts used a phrase that seemed to sum up the new majority’s view toward campaign finance regulation. “Enough is enough,” the chief justice said.

I think the Times' Supreme Court analyst, Linda Greenhouse, is being a bit restrained when she writes that it is unclear who benefits and who loses from this decision. On the face of it, she's right, this isn't an "ideological" decision. Trouble is, I think we are seeing a clear "flexibility" in how the majority now views the law and past Supreme Court decisions. Like Bush v Gore, ideology is going to be at the core of the Court's decision making. Today the Court demands the free speech rights of an anti-choice group in Wisconsin. Tomorrow I suspect, the same rights will not be afforded to an anti-war group in New Hampshire.

For instance, it's unclear how Roberts squares his opinion that the only ads that can be rightfully prohibited are those that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" with the Wisconsin Right To Life ads, which specifically named Russ Feingold. Not to vote against him. No, not at all. Just to call his office. Repeatedly And provided the number. Wink fucking wink.

Even Scalia, no stranger to making things up as he goes along, finds Roberts' opinion little more than obfuscation.

The dissenters’ argument that the court had effectively overruled its 2003 decision in McConnell v. Federal Election Commission, presented in an opinion by Justice Souter, found agreement among election law experts.

“Corporations received the victory that they did not achieve in 2003,” said Edward B. Foley, a professor at the Moritz College of Law at Ohio State University.

It may be only a matter of time before the court reconsiders its 2003 decision upholding the constitutionality of the entire law, or at least expands its Monday decision to strike down any restriction on advertising. Three of the five justices in the majority, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, declined to sign the chief justice’s opinion because it did not take that step.

In fact, Justice Scalia, in a footnote to his separate opinion, agreed with the dissenters that the court has in effect already reversed the 2003 decision when it came to the advertising restriction. The decision changed the law so substantially that it “effectively overrules” the 2003 decision “without saying so,” Justice Scalia said. And demonstrating that he does not consider the new chief justice immune from the insults for which his opinions are famous, he added: “This faux judicial restraint is judicial obfuscation.”

In any case, kiss goodbye to McCain Feingold. Whether that's a good or a bad thing remains to be seen. After all, Democrats have proven they can fund raise with the best of them. But surely corporations, who already control how legislation gets written in Washington, will have even more freedom in how they fund campaigns. And don't give me that "unions can do it too" -- unions currently have no where near the financial clout that corporations and "industry trade groups" have.

Well, WTF. Jesus sez, don't bogart that bong.