A New Year, A New Front In The War Against Free Speechby Doug Mataconis
In Sunday’s Washington Post, George Will writes about a case that may yet begin to challenge the tangled web that is campaign finance regulation:
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.”
How dare these people exercise their First Amendment rights. And it is the McCain-Feingold’s law assault on freedom of speech that becomes apparent in the opinion of the dissent judge in the case that Will writes about:
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.”
In other words, a process into which no judge should be involved to begin with. The Supreme Court made it’s first mistake when it upheld McCain-Feingold to begin with. Hopefully, it will use this case, and others like it coming down the pike, to correct such an obvious mistake.