In FEC v. Wisconsin Right to Life, Inc., the United States Supreme Court held that the federal Bipartisan Campaign Reform Act violated the First Amendment right to free speech because the statute restricted a form of political speech known as issue advocacy. In attempting to protect this right from government intrusion, however, the Court improperly excluded considerations of democracy from its free speech analysis. The opinion consequently misrepresented the nature of the right to free speech for two independent but related reasons. First, because preserving a well-functioning democracy is the primary reason free speech is protected, the right to free speech does not exist when it is not justified by-nor when it conflicts with-the interest in preserving a healthy democracy. Second, an inductive review of American history and law shows that democracy is an independent right. The Court was therefore responsible for determining whether the political speech in question conflicted with the right to democracy and adjudicating between these two rights. By explicitly deciding not to weigh the impact that issue advocacy has on democracy, the Court set the dangerous precedent that courts can decide free speech cases without considering whether the speech in question tramples on the interests and rights that define it and determine its scope.
Matthew Michael Calabria,
Remembering Democracy in the Debate over Election Reform,
58 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol58/iss5/2