A Threat to the Campaign Law

The NYT tries to wax eloquent about why McCain-Feingold should be allowed to limit our free speech rights.

The lower court interpreted the Supreme Court's 2003 ruling to mean that all ads of this kind were restricted within the 60-day window, and that lower courts should not get involved in trying to separate acceptable ads from unacceptable ones. But the Supreme Court disagreed this week, saying that courts could hear "as applied" challenges like Wisconsin Right to Life's, and consider which ads were really no more than grass-roots lobbying.

There is nothing wrong with that in principle. But it is important that the courts develop a narrow and honest test for when advertisements are grass-roots lobbying. In this case, Wisconsin Right to Life was actively opposing Senator Feingold's re-election. It had supported candidates against him, and the ads it wanted to run right before his election were clearly intended to encourage people to vote against him. The claim that those ads were unrelated to opposing Senator Feingold's re-election is simply not credible.

If the courts create a big "grass-roots lobbying" loophole, it will free corporations and special interests to run phony "issue ads" that are actually a form of unregulated campaign contribution. That is not what Congress wanted when it passed McCain-Feingold, and it is not what the public wants today.

Shorter NYT: we'll tell you what you need to know. Those pesky people with money shouldn't be allowed to tell you their point of view. The media will cover the story.

There is a reason that Freedom of Speech is in the First Amendment, the framers of the Constitution thought it was pretty important. Limiting speech in the immediate runup to an election is probably not what the framers had in mind.