| WASHINGTON -- Last March, during the Supreme Court argument concerning the Federal Election Commission's banning of a political movie, several justices were aghast. Suddenly and belatedly they saw the abyss that could swallow the First Amendment.
Justice Antonin Scalia was "a little disoriented" and Justice Samuel Alito said "that's pretty incredible." Chief Justice John Roberts said: "If we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book" -- a hypothetical 500-page book containing one sentence that said "vote for" a particular candidate.
What shocked them, but should not have, were statements by a government lawyer who was only doing his professional duty with ruinous honesty -- ruinous to his cause. He was defending the mare's nest of uncertainties that federal campaign finance law has made, and the mess the court made in 2003 when, by affirming the constitutionality of McCain-Feingold's further speech restrictions, it allowed Congress to regulate speech by and about people running for Congress.
 The government lawyer was trying to justify the FEC's 2008 decision that McCain-Feingold required banning "Hillary: The Movie" from video-on-demand distribution. The lawyer said, in effect:
Don't blame me. McCain-Feingold orders people to shut up when political speech matters most. It bans "electioneering communications" (communications "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate") paid for by corporations in the 30 days before primaries and 60 days before general elections. Corporations include not only, or primarily, the likes of GM and GE; corporations also include issue advocacy groups, from the National Rifle Association to the Sierra Club. So, yes, if a book published (as books are) by a corporation contains even a sentence of election-related advocacy, the book could -- must -- be banned by the federal government, and not just during the McCain-Feingold muzzle period.
Stunned, the court ordered that the case be reargued Sept. 9. On Aug. 30, a New York Times story included a delicious morsel about Fred Wertheimer, an indefatigable advocate of increased government control of the quantity, timing and content of campaign speech -- speech about the composition of the government:
"In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, 'A campaign document in the form of a book can be banned.'"
Last Wednesday, Elena Kagan, the new solicitor general, said, in effect: Relax, the FEC has never taken enforcement action concerning a book under McCain-Feingold. Yes, but the FEC deadlocked about prosecuting George Soros under another section of federal campaign law because he did not make required reports of money spent on his promotion of his 2004 book attacking George W. Bush -- money that might, or might not, have been "independent expenditures" for "express advocacy."
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