If the First Amendment and the questions asked in yesterday's oral arguments before the Supreme Court are any indication, quite possibly.

The Supreme Court put defenders of the McCain-Feingold campaign finance law on the defensive on Wednesday in a spirited argument that suggested the court could soon open a significant loophole in the measure.

At issue is a major provision of the five-year-old law that bars corporations and labor unions from paying for advertisements that mention the name of a candidate for federal office and that are broadcast 60 days before an election or 30 days before a primary. By a 5-to-4 vote in December 2003, the court held that the provision, on its face, passed First Amendment muster.

But a new majority may view more expansively the ConstitutionÂ’s protection of political messages as free speech, and invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear.

The argument on Wednesday was over whether, despite the 2003 blanket endorsement, the law would be constitutional if applied to three specific ads that an anti-abortion group sought to broadcast before the 2004 Senate election in Wisconsin.

The ads, sponsored by Wisconsin Right to Life Inc., mentioned the state’s two senators, both Democrats: Russell D. Feingold, a co-sponsor of the McCain-Feingold law, who was up for re-election, and Herb Kohl, who was not. The advertisements’ focus was a Democratic-led filibuster of some of President Bush’s judicial nominees. Viewers were urged to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” The ads provided no contact information, instead directing viewers to a Web site that contained explicit criticism of Mr. Feingold.

A special three-judge Federal District Court here ruled that because the text and images of the ads did not show that they were “intended to influence the voters’ decisions,” they were “genuine issue ads” that the government could not keep off the air.

McCain-Feingold is bad law all the way around -- but this particular provision may be among its worst, effectively stifling the ability of the people to engage in political speech and to petition the government for a redress of grievances -- a two-fer of First Amendment violations. While I'd love to see the entire law declared unconstitutional, I'd settle for this provision. But then again, I've always been one who sees more political speech as better than less.

Posted by: Greg at 10:06 PM | Comments (5) | Add Comment
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