WASHINGTON -- A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. Divided 2-1, the court held -- unremarkably, you might think -- that issue advocacy ads can run during an election, when they matter most. This decision will strike zealous (there is no other kind) advocates of ever-tighter regulation of political speech (campaign finance ``reformers'') as ominous. Why? Because it partially emancipates millions of Americans who incorporate thousands of groups to advocate their causes, groups such as the ACLU and the NRA.
And Wisconsin Right to Life. It is another organization by which people assemble (see the First Amendment) to speak (see it again) in order to seek redress of grievances (the Amendment, one more time). In 2004, WRTL was distressed because Wisconsin's senators, Russ Feingold and Herb Kohl, were helping to block confirmation votes on some of President Bush's judicial nominees, wanted to run ads urging people to ``contact Senators Feingold and Kohl and tell them to oppose the filibuster.''
But Feingold was running for re-election, and the McCain-Feingold ``reform'' makes it a crime for entities such as WRTL to use their corporate funds to broadcast an ``electioneering communication'' within 30 days of a primary or 60 days of a general election. An ``electioneering communication'' is one that ``refers to'' a candidate for federal office.
Although in 2003 the Supreme Court upheld McCain-Feingold, the court later said it would consider appeals against the law ``as applied.'' The majority on the three-judge court, preserving the distinction between electioneering and grass-roots lobbying, held that WRTL's ads were exempt from the McCain-Feingold election-eve blackouts of speech because the ads were not ``coordinated'' with a candidate's campaign and did not engage in ``express advocacy'' -- did not use the words ``vote for'' or ``vote against'' a candidate.
The dissenting judge wanted to examine the ``intent'' of the ads by examining their ``context,'' looking for clues as to whether the sponsor of the ads hoped to not only advocate an issue but to influence an election. Imagine: Judges scouring the political landscape, searching for evidence (people's past opinions or associations; e-mails and other communications) that would empower them to rule that grass-roots lobbying about an issue is ``really'' the functional equivalent of electioneering (express advocacy).
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