Such delving and calculating were rejected by Chief Justice John Roberts as potentially chilling intrusions by government into citizens' participation in political argument. Instead, Roberts wrote, focusing on only the substance of the communication will entail ``minimal if any'' investigations of the communicators' states of mind, thereby avoiding a proliferation of factors that speech regulators will be allowed to weigh. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined in the court's judgment, which was, in Roberts' words: ``We give the benefit of the doubt to speech, not censorship.''
McCain-Feingold's ostensible purpose is to prevent corruption (which has long been proscribed by many other laws) or the ``appearance'' of it, which is difficult to define and measure, and hence is problematic to proscribe. But it is telling that McCain-Feingold restricts not just for-profit corporations but also nonprofits, such as WRTL, whose threat of corruption is ... what?
McCain-Feingold's actual purpose is to protect politicians from speech that annoys them. That is why McCain says he regrets WRTL's victory because it will allow groups ``to target a federal candidate in the days and weeks before an election.''
In his concurrence, Scalia said that McCain-Feingold involves ``wondrous irony.'' It ostensibly was written to restrain entities with ``immense aggregations of wealth'' that have ``corrosive and distorting effects.'' These supposedly powerful entities were not powerful enough to prevent passage of the law. What the law actually muzzled faster than you can say ``Michael Bloomberg,'' was little WRTL.
WRTL's victory gratifies all who understand the threat McCain-Feingold poses -- was designed to pose -- to free political advocacy. It is, however, premature to say goodbye -- and good riddance -- to a law empowering government to regulate the quantity, content and timing of speech about government. The WRTL decision is only the first test of McCain-Feingold ``as applied'' since December 2003 when, in another 5-4 ruling, the court, before Alito replaced Sandra Day O'Connor, upheld that law's constitutionality. Still, we are a step closer to the deregulation of political speech, and hence to the enhancement of active liberty that Breyer anticipates with foreboding.
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