McCain-Feingold and free speech

• Article
• Comments ()
• Click-2-Listen
• Videos

By

The importance of judicial appointments to the pro-life cause was demonstrated just last week when the Supreme Court's newest members, Chief Justice John Roberts and Justice Samuel Alito, joined a five-member majority to uphold a ban on partial-birth abortion. But do grass-roots organizations like Wisconsin Right to Life have a First Amendment right to publicly encourage citizens to support confirmation of pro-life judges? Under the McCain-Feingold campaign-finance law, at least for 90 days of every election year, the federal government says no. Today, the Supreme Court will hear arguments in a case that could lift the muzzle off of organizations like the Wisconsin pro-lifers.

Wisconsin Right to Life's story began three years ago amid the judicial filibuster controversy of 2004. It launched a grass-roots radio campaign urging Wisconsinites to contact their senators, Herb Kohl and Russ Feingold, and urge them to oppose the filibusters. But, there was one problem: Mr. Feingold was running for re-election.

Under McCain-Feingold, passed in 2002, grass-roots organizations such as Wisconsin Right to Life may not use their treasury funds to run broadcast ads that mention the name of a federal candidate within 30 days of a primary or 60 days of a general election. Because the Wisconsin organization's ads referred to Mr. Feingold, who was running unopposed in a primary, the Federal Election Commission ruled that the proposed ads violated the McCain-Feingold law. Now, after nearly three years of litigation, the Wisconsin pro-life case provides the high court with an important opportunity to reaffirm the First Amendment and create a meaningful exception to, or perhaps strike down completely, McCain-Feingold's widely despised and discredited "electioneering communications" ban.

Neither the government nor Sen. John McCain, who has personally intervened in the case on behalf of the FEC, is shy in revealing the purposes of the electioneering communications ban: preventing criticism of and limiting voter communication with officeholders.

According to Mr. McCain's brief, Wisconsin Right to Life's advertisements possessed "two critical characteristics" that should make them illegal. "First, the ads took a critical stance regarding a candidate's position on an issue. And, second, they referred to the candidate by name in urging the audience to contact the candidate about the issue." The government argues that Wisconsin Right to Life could avoid the ban by leaving Mr. Feingold's name out of its ads, or, because the ban only applies to television and radio, using print media. But experts agree that not naming the officeholder makes the effort less effective, and grass-roots efforts also fare better when run in broadcast media. In other words, the government can tolerate criticism, so long as it is ineffective.

Alternatively, the government suggests that grass-roots organizations such as Wisconsin Right to Life should use a political action committee (PAC) to finance ads. This option may be fine for large unions and corporations with established, cash-rich PACs. But the PAC option imposes numerous constraints on small nonprofits such as Wisconsin Right to Life that make it difficult or impossible to quickly raise adequate funds for the grass-roots effort when Congress is poised to act.

This delay can be fatal to a grass-roots campaign. As Wisconsin Right to Life asserts, "A lost opportunity at the critical time is an opportunity lost forever." And data show that McCain-Feingold freezes many groups out of the process at the most critical time. For one thing, it's not as if Congress stops voting close to an election. Within the 60 days preceding the 2004 election, for example, there was a 156 percent increase in the number of House bills and resolutions introduced over the previous 60-day period. In recent years, within blackout periods, the House and Senate have voted on such high-profile issues as abortion, impeachment, homeland security and appropriations.

Worse yet, the ban on ads often extends far beyond 60 days before the election. In presidential races, for example, the ad ban is triggered for 30 days before the national party conventions and 30 days before the primary in each state reached by a broadcast station. In many broadcast markets, stations serve several states. As a result, in markets such as Chicago, Philadelphia and Washington, D.C., the blackout period extends upward of 200 days in a presidential election year.

Officeholders have no right to insulate themselves from criticism for even a single day, let alone 200. If the First Amendment means anything, it ought to mean that a nonprofit membership organization such as Wisconsin Right to Life can speak freely about politicians and issues -- especially close to an election. The right to do so is central to the First Amendment and fundamental to the maintenance of a healthy democracy.

Bradley A. Smith, a former chairman of the Federal Election Commission, is chairman of the Center for Competitive Politics. Stephen M. Hoersting is executive director of the Center for Competitive Politics, which filed an amicus brief on behalf of Wisconsin Right to Life.