WASHINGTON--A special three-judge panel has produced four opinions totaling 1,600 pages attempting to decipher the McCain-Feingold campaign regulation law and decide if it is compatible with this inconvenience from the Constitution: "Congress shall make no law ... abridging the freedom of speech."
This is what happens when politicians expand restrictions on who may engage in political advocacy, when they may engage in it, how much of it they may engage in, and what they may say. The task of squaring that policing of speech with the First Amendment invites intellectual corruption. Fortunately, Judge Karen LeCraft Henderson dissects the debasement of scholarship for partisan purposes by New York University's Brennan Center for Justice. Congress and now two judges have largely based their approval of McCain-Feingold on the Center's meretricious ``research.''
Congress designed McCain-Feingold partly to impede groups, from the Sierra Club to the National Rifle Association, from running issue advocacy ads that annoy congressional candidates. The Supreme Court has held that ads that do not expressly advocate the election or defeat or an identifiable candidate cannot be regulated. Yet McCain-Feingold prohibits organizations like the Sierra Club and NRA from spending their members' dues money for broadcasts of such advocacy 30 days before a primary or 60 days before a general election.
Congressional supporters of McCain-Feingold and two of the three judges say most issue ads are ``shams.'' That term was popularized by two Brennan Center studies purporting to document that most ads are really intended not to promote policies but to influence elections.
Now, leave aside the impossibility, indeed absurdity, of separating issue outcomes from election results. But examine Henderson's demonstration, quoting sworn testimony, that the Brennan Center promised the liberal Pew Charitable Trust, which funded the studies of the ads, that the so-called scholars involved would ``design and execute'' the studies to produce results helpful to lobbying for McCain-Feingold.