A Retreat on Rationing Free Speech?
A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2 to 1, the court held -- unremarkably, you might think -- that issue advocacy ads can run during an election campaign, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance "reformers") as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the American Civil Liberties Union and the National Rifle Association.
And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the amendment, one more time). In 2004 Wisconsin Right to Life was distressed because Wisconsin's senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush's judicial nominees. It wanted to run ads urging people to "contact Senators Feingold and Kohl and tell them to oppose the filibuster."
But Feingold was running for reelection, and the McCain-Feingold "reform" makes it a crime for entities such as Wisconsin Right to Life to use their corporate funds to broadcast an "electioneering communication" within 30 days of a primary or 60 days of a general election. An "electioneering communication" is one that "refers to" a candidate for federal office.
Although in 2003 the Supreme Court upheld McCain-Feingold, the court said later that it would consider appeals against the law "as applied." The majority on the three-judge court, preserving the distinction between electioneering and grass-roots lobbying, held that Wisconsin Right to Life's ads were exempt from the McCain-Feingold election-eve blackouts of speech because the ads were not "coordinated" with a candidate's campaign and did not engage in "express advocacy" -- did not use the words "vote for" or "vote against" a candidate.
The dissenting judge wanted to examine the "intent" of the ads by examining their "context," looking for clues as to whether the group hoped to not only advocate an issue but influence an election. Imagine: Judges scouring the political landscape, searching for evidence (people's past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is "really" the functional equivalent of electioneering (express advocacy).
Such a process would necessarily be so protracted that no challenged ad could be authorized in time for an election. Besides, Bob Bauer, a Democratic campaign lawyer, rightly warns that the prospect of such inquiries should "make a sensible citizen's blood run cold." An uncircumscribed inquiry into "intent" would become "an intrusive process" in which an organization's internal communications would be subpoenaed and political operatives and consultants would be "put under oath and questioned about what they meant and intended and thought."
The Wisconsin Right to Life case is probably heading for the Supreme Court. There, Justice Samuel Alito occupies the chair that Sandra Day O'Connor occupied when she voted with the majority in the 5 to 4 ruling that upheld McCain-Feingold.
Still, the reformers' zeal for regulating speech is undiminished. The Federal Election Commission recently fined some "527" groups (named for the tax code provision under which they organize) $630,000. Their offense? Issue advocacy in 2004 that, "taken as a whole," could "only be interpreted by a reasonable person as containing the advocacy of the election or defeat" of a federal candidate. Editorial writers at The Post and the New York Times, ever eager to regulate political advocacy not done by newspaper editorial writers, approved, although the Times thought the fines insufficient, and although The Post, calling the current law "murky," thought the FEC should have enforced the murkiness quicker.
The Times no longer bothers to pretend that its rationale for speech regulation is fear of corruption or the appearance thereof. Rather, the Times justifies suppressing 527s on aesthetic grounds -- they are run by "hard-edged activists" and their ads are too negative. Presumably, suppressing 527s will elevate political discourse -- and, presumably, it is the government's business to enforce the elevation. The Post also is tellingly silent about the reformers' original corruption rationale for rationing political speech by restricting the political money that finances it. Instead, The Post says 527s wield "significant" -- by implication, excessive (relative to The Post's?) -- influence.
Bauer wonders why, absent a compelling government interest in combating corruption, unregulated speech resulting in influence should be a federal offense. When, as surely it will, the Supreme Court considers that question, it can begin undoing the damage it did at the time it affirmed McCain-Feingold and licensed government to ration political speech.