Whose Free Speech?

Sanctioning subterfuge

June 27, 2007

In a decision that nominally pitted free-speech rights against Congress' ability to limit corporate, labor and other interest-group money in political campaigns, the Supreme Court gave the nod Monday to First Amendment concerns.

As a practical matter, though, the high court's 5-to-4 ruling in favor of an anti-abortion group blocked from airing television ads during the 2004 election season effectively sanctions subterfuge.

Despite a long-standing prohibition on contributions to federal candidates from corporations and other big-money sources, the court held that thinly veiled attempts to evade the ban through sham issue ads are acceptable.

The Federal Election Commission should move quickly to draw rules implementing the decision so tightly that obvious flouting of the intent of the 2002 McCain-Feingold law is kept to a minimum.

Both sponsors, Republican Sen. John McCain of Arizona and Democratic Sen. Russ Feingold of Wisconsin, were heartened that another key feature of the law remains intact: the prohibition on political parties channeling "soft money" contributions to candidates from business, labor and others forbidden from making direct donations.

But in setting a high bar for what constitutes a prohibited issue ad, the court opened a channel for otherwise prohibited money.

The case focused on an ad campaign Wisconsin Right to Life planned to air in the fall of 2004 in which viewers were urged to contact Senator Feingold and fellow Wisconsin Democrat Herb Kohl, telling them not to join in a filibuster against President Bush's judicial nominees. Because Senator Feingold was a candidate in that election, ads financed by interest groups that mention his name in a negative way were prohibited under the law he helped write.

A majority of the court found, though, that "discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election." The test of whether an ad is permissible is whether it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," the court said.

A loophole that large could encourage special-interest groups to wage advertising campaigns for the upcoming presidential primaries that they may not have contemplated before the ruling. Senators McCain and Feingold have long predicted their restrictions on campaign finances would be eroded by efforts to game the system. Now the Supreme Court has sped up the process.

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