Although today’s opinion is significant on the doctrinal questions of soft money and issue advocacy, I want to step back for a minute and look at the big picture, and to me the big picture is the Court’s cursory dismissal of First Amendment arguments. I write these words as a supporter of the Court’s determination that the soft money and issue advocacy provisions are constitutional. My complaint is that the Court reached the decision too easily.
Consider two prominent examples, that I describe in more detail in the post below. First, the majority dismissed in a single paragraph a concern that the new issue advertisement provision would violate the First Amendment by regulating too much speech not intended to influence the outcome of elections. The three-judge court that had considered the issue before the Supreme Court devoted hundreds of pages to the questions of substantial overbreadth—in my view a close and difficult question.
Second, the majority dismissed in a footnote the vagueness attack on the promote, support, oppose, or attack definition of federal election activity. Perhaps the Court really has confidence that the FEC can craft some workable regulations here, but the recent history of the FEC gives me little confidence.
The Court