Goodbye McCain-Feingold?

George Will

6/28/2007 12:01:00 AM - George Will

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police under McCain-Feingold, insisted was that law's blackout period, during which the First Amendment is supposedly repealed.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.

Such delving and calculating were rejected by Chief Justice John Roberts as potentially chilling intrusions by government into citizens' participation in political argument. Instead, Roberts wrote, focusing on only the substance of the communication will entail ``minimal if any'' investigations of the communicators' states of mind, thereby avoiding a proliferation of factors that speech regulators will be allowed to weigh. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined in the court's judgment, which was, in Roberts' words: ``We give the benefit of the doubt to speech, not censorship.''

McCain-Feingold's ostensible purpose is to prevent corruption (which has long been proscribed by many other laws) or the ``appearance'' of it, which is difficult to define and measure, and hence is problematic to proscribe. But it is telling that McCain-Feingold restricts not just for-profit corporations but also nonprofits, such as WRTL, whose threat of corruption is ... what?

McCain-Feingold's actual purpose is to protect politicians from speech that annoys them. That is why McCain says he regrets WRTL's victory because it will allow groups ``to target a federal candidate in the days and weeks before an election.''

In his concurrence, Scalia said that McCain-Feingold involves ``wondrous irony.'' It ostensibly was written to restrain entities with ``immense aggregations of wealth'' that have ``corrosive and distorting effects.'' These supposedly powerful entities were not powerful enough to prevent passage of the law. What the law actually muzzled faster than you can say ``Michael Bloomberg,'' was little WRTL.

WRTL's victory gratifies all who understand the threat McCain-Feingold poses -- was designed to pose -- to free political advocacy. It is, however, premature to say goodbye -- and good riddance -- to a law empowering government to regulate the quantity, content and timing of speech about government. The WRTL decision is only the first test of McCain-Feingold ``as applied'' since December 2003 when, in another 5-4 ruling, the court, before Alito replaced Sandra Day O'Connor, upheld that law's constitutionality. Still, we are a step closer to the deregulation of political speech, and hence to the enhancement of active liberty that Breyer anticipates with foreboding.