Unfree Speech

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" Congress shall make no law. . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The Fourth of July is an apt moment to reflect on one of the great underreported stories of our time: the rise of speech regulation. Glance at the First Amendment, but do not think it still applies. Large bodies of political speech are now governed by laws, agency regulations, court decisions and lawyerly interpretations. Speech has become unfree.

This does not mean that we don't have vigorous debate or that most points of view aren't represented. But in and around elections, what can be said, by whom and under what circumstances, is now a tangled web of legal qualifications -- all justified as campaign finance "reform."

As proof, consider the Supreme Court's recent decision in Federal Election Commission v. Wisconsin Right to Life Inc. Don't try to understand it; you won't. That's the point. What's permissible or impermissible speech is now murky. Plain political speech has mushroomed into many subcategories -- "issue speech," "electioneering communications," "express advocacy" and "nonexpress advocacy," among others. Different legal standards apply.

It's absurd to treat "issue speech" (broadly: trying to influence a governmental outcome) as different from "election speech" (broadly: trying to influence a campaign outcome). In democracies, people and groups express their views on issues by trying to elect leaders who agree. But campaign finance law insists on this distinction because without it, curbing campaign contributions would be impossible as a practical matter.

In 2004, Wisconsin Right to Life began running ads urging the state's two senators to oppose a filibuster involving President Bush's nominees for federal judgeships. But the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold after its main sponsors, prohibits some "issue ads" 30 days before a primary and 60 days before a general election. Because one of the Wisconsin senators -- Russell Feingold-- was running in a primary, the ads had to stop in mid-August.

Never mind the coincidence that McCain-Feingold had the effect of protecting one of its sponsors from criticism. Focus merely on the law's manipulation of free speech. The ads would have been legal if:

· They had run in newspapers, been delivered over the Internet or used in direct-mail or phone campaigns (the law's limits apply only to TV, radio and satellite transmission).

· Neither senator was up for reelection.