Freedom of speech survives another day

George Will

5/8/2003 12:00:00 AM - George Will

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.

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?