Free Speech’s Victory, Schneiderman’s Defeat

How many more court decisions will it take before opponents of free speech give up their quest to limit participation in the electoral process?

The answer should be “none.” But don’t count on it.

A federal appeals court recently ruled that the state’s limitations on contributions to independent political organizations—in other words, Super PACs—very likely are an unconstitutional limit on free speech. If that argument sounds familiar, well, it should. Numerous courts, including the U.S. Supreme Court in the Citizens United case, have ruled against attempts to limit political spending by corporations, labor unions, advocacy groups and other organizations. You’d think the message would be clear by now.

A group supporting mayoral candidate Joe Lhota, New York Progress and Protection PAC, filed suit against a statute capping individual contributions to PACs in any given year. The group said it had donors who wished to donate more than $150,000 to its cause but were prohibited from doing so because of the state’s limitations. They asked for a stay of the statute.

In denying that stay, Manhattan Federal District Court Judge Paul A. Crotty ruled that issuing an injunction so close to the Nov. 5 election “would seriously undermine the public’s interest in a fair and predictable election process.” Judge Crotty’s questionable logic received an unusually public boost from New York’s attorney general, Eric Schneiderman, who defended the law in court and bellowed that the law was “unquestionably constitutional.”

Not so much.

Perhaps Mr. Schneiderman was absent on the day they taught law at Harvard Law School, but a three-judge panel of the United States Court of Appeals for the Second Circuit, a bastion of legal scholarship that produced Learned Hand, Thurgood Marshall, John Marshall Harlan II and Sonia Sotomayor, unanimously overruled Judge Crotty and harshly disagreed with the attorney general’s interpretation of what’s constitutional. “Few contested legal questions are answered so consistently by so many courts and judges,” wrote Judge Dennis Jacobs, noting that the statute “reduces constitutionally protected political speech.”

Time to brush up on case law and precedent, Mr. Schneiderman. Not to worry, though: You’ve got a sexy new issue in the form of alleged shoplifters at Barneys.

The decision will not have any impact on the listless mayoral race, which is beginning to resemble the sort of coronation a generation of Democrats came to expect before Rudy Giuliani’s first mayoral bid in 1989. Next year, however, state voters will go the polls to choose four statewide officials and a new state legislature. The state, many believe, will be awash in money.

Which is another way of saying the state will be awash in speech, and, in a democracy, that’s a good thing. Labor unions will be able to funnel contributions to committees advocating their pet causes; corporations will be able to do the same, and both will do so without any limit on their right to do so.