I’ve often railed against restrictions on political speech that masquerade as “campaign finance reform”. Personally, I don’t believe in ANY restrictions on political speech, save for bona fide application of laws on libel and slander.

Today the LA Times takes a half a step in the direction of supporting the ideal enshrined in the First Amendment by urging that the Supreme Court take the opportunity of a pending case to make speech a little more free than McCain-Feingold allows. It ultimately comes down to a case of how certain forms of speech are classified.

The speech-curtailing measure at issue is part of the broader McCain-Feingold campaign finance law. The centerpiece of that law banned "soft money" contributions to political parties that were used to circumvent limits on how much donors could contribute to candidates for federal office. What is glaringly offensive to the 1st Amendment is an accompanying ban on "electioneering communications" paid for out of the treasuries of independent organizations.

As defined by the law, electioneering communications are advertisements that mention a candidate for federal office and are broadcast within 30 days of a primary election or within 60 days of a general election. They need not (and usually do not) tell viewers to vote for or against a candidate.

Unfortunately, this means that there are vast chunks of the year when advocating grassroots action is illegal. After all, suggesting that a key senator or representative be contacted qualifies as “electioneering”, despite the fact that it clearly is not.

There are a lot of phoney "issue ads" out there ("Tell Sen. Smith you disagree with him about Iraq" can sound a lot like an endorsement for challenger Jones), but the court has to err on the side of preserving political speech. When it comes to speaking out about a candidate, opponents (and news outlets like ours) should not have a monopoly in the closing days of a campaign, especially if the outside organization weighing in is genuinely acting on its own.

The particular facts of the Wisconsin Right to Life ads are a compelling indictment of the law's overreach and should prod the high court to reconsider whether the law could be constitutional under any set of facts. The addition of Justice Samuel A. Alito Jr. may dictate a different outcome — retired Justice Sandra Day O'Connor cast the deciding vote upholding the limits in 2003.

But if the court isn't willing to go back to the drawing board, Congress should. An advertisement praising or criticizing a politician — even one seeking reelection — has more in common with the endorsement editorials that appear on this page than it does with the campaign contributions (in hard or soft dollars) that have received only minimal 1st Amendment protection from the courts.

The "bright line" that needs to be drawn is the one between financing someone else's message and articulating your own.

But more to the point, so what if it is, in fact, electioneering? Is it not the right of American citizens to speak freely on the election of our political leaders? DonÂ’t Americans have the right to associate together for precisely that purpose? Such speech is precisely what the First Amendment is meant to protect!

But then again, I also believe in unlimited, unrestricted campaign donation – a system that worked for most of the history of the Republic, and which generated less corruption than the “reforms” designed to “clean up politics”.

Posted by: Greg at 11:51 AM | Comments (19) | Add Comment
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