WASHINGTON -- Let us hope that Supreme Court Justice Stephen Breyer, who is rarely right about First Amendment matters, was right about what he said in April. During oral arguments about a challenge to a use of the McCain-Feingold law to suppress political speech, Breyer, who considers the suppression constitutional, said to the challenger: ``If we agree with you in this case, goodbye McCain-Feingold.''
The challenger was a small group of Wisconsin citizens who, by their grass-roots lobbying for their political views, tried to commit the offense -- the crime, actually -- of influencing their U.S. senators during what the Federal Election Commission, which acts as the speech police under McCain-Feingold, insisted was that law's blackout period, during which the First Amendment is supposedly repealed.
In 2004, Wisconsin Right to Life was unhappy because Wisconsin Sens. Russ Feingold and Herb Kohl were participating with other Democrats in filibusters to block Senate consideration of some of President Bush's judicial nominees. WRTL wanted to broadcast ads urging the senators' constituents to ``contact Senators Feingold and Kohl and tell them to oppose the filibuster.''
This is speech by people seeking a redress of grievances. The italicized words are from the First Amendment's enumeration of rights that ``Congress shall make no law ... abridging. ...'' Yet four Supreme Court justices -- Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens -- supported the FEC's judgment that McCain-Feingold required banning WRTL's ad.
The ``problem,'' in the FEC's judgment, with WRTL's exhortation to Wisconsin residents was that Feingold was running for re-election in 2004. Because WRTL is incorporated, it fell under McCain-Feingold's ban on any ``electioneering communication'' -- a radio or TV ad that ``refers to'' a candidate for federal office -- within 30 days of a primary or 60 days of a general election. The blackout period silences speech when it matters most.
Yet WRTL's ad involved no coordination with a candidate's campaign and contained nothing to make it an express advocacy communication that urges people to vote for or vote against a candidate. The italicized words alarm the FEC, and Sen. John McCain.
He and others favor construing his law in a way that would give regulators vast discretion to suppress speech. McCain and his acolytes argue that issue ads such as WRTL's will be discovered to be electioneering communications, if speech regulators delve deeply enough into the actual intent of those running the ad, or the regulators calculate the ad's likely effect.