Glen Reynolds points to several bloggers cheering as a free-speech victory the Supreme Court ruling in the case Wisconsin Right to Life v FEC. The court ruled that the decision in the first challenge to the BCRA, McConnell v. FEC which upheld the abridgment of free speech immediately prior to an election, did not preclude the filing of future "as-applied challenges." Which means that if you think the FEC has improperly applied BCRA to your particular advertising, you still have the right to petition the government for redress.

Mike Krempasky of Red State, Ann Althouse and Rick Hasen all consider this a victory. And I guess in some small sense they are right. At least the Supreme Court did not cast aside our right to petition for redress in the same way it did our freedom of speech. But really, what have we won in this case?

We have won the further legitimization of BCRA's infringement of our free speech rights. The FEC can still decide what is and isn't allowable political speech 30 days before a primary and 60 days before a general election. If you don't like their decision, you are free to let a federal court decide if you may speak. All this ruling has done is clarify the mechanisms through which the federal government decides who is allowed to say what.

The only slim ray of hope in all of this is that maybe someday one of these "as-applied challenges" will wind up before the Supreme Court. And when that day comes, maybe the Court will dump BCRA where it belongs, on the ash heap of history.

Posted by: Stephen Macklin at 05:21 PM | No Comments | Add Comment