Two professors had their students view ads and label them ``genuine'' issue advocacy ads or ``shams'' designed solely to influence elections. Rushing to publish a book in time to sway the votes on McCain-Feingold, the Brennan Center, unhappy that one group of students had labeled too many ads ``genuine,'' called the students' professor, Kenneth Goldstein, on his cell phone--he was at an airport--and ``after the text of each ad was read to him over the phone, Goldstein overruled the students' judgments and reclassified each ad as an `electioneering' ad.'' This sham ``social science'' powerfully influenced the congressional vote on McCain-Feingold, and is the foundation of two of the three judges' opinions that much of McCain-Feingold is constitutional.
Under that law, after ads have run and their legality has been challenged, the Federal Election Commission shall brood about their intent. But would not fear of an adverse ruling from the FEC's speech police have a chilling effect on political advocacy?
No problem, according to Judge Richard Leon, who complacently suggests: Do you find the McCain-Feingold speech rules vague and confusing? There are two ways to be safe from criminal prosecution. Avoid mentioning a congressional candidate. Or seek an advisory opinion from the FEC about whether the speech you want to engage in is criminal.
Wayne LaPierre, executive vice president of the NRA, an organization whose speech some McCain-Feingold supporters specifically said they wanted to limit, says Leon's advice amounts to: ``Ask a government agency funded by Congress to tell you what you are permitted to say about members of Congress.'' Leon says that since Congress knows so much more than courts do about issue ads, courts should defer to Congress about abridging the right to run them. So Congress will be the arbiter of when and how citizens are permitted to criticize members of Congress?
No problem, says Leon serenely, because ``a person of ordinary intelligence can be expected to understand this test''--the test between legal and criminal political advocacy. But Leon and his two colleagues disagreed about the ads. Which of the judges do not have ordinary intelligence?
Most legislators who voted for McCain-Feingold had not the foggiest notion of its contents. And the three judges needed five months and 1,600 pages to discover that they could not agree about the law's meaning or constitutionality.
When weighing those questions, the Supreme Court should weigh--literally, on a scale--the 1,600 pages, and should ask itself: Is not such recondite reasoning, leading to such opaque conclusions about such baroque regulations of speech, prima facie evidence of incompatibility with the austere brevity of the First Amendment?
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