Friday, December 22, 2006

Issue Advocacy: The Real Loophole

Yesterday a federal court ruled that the Federal Election Commission erred in ruling that the Wisconsin Right to Life organization could be barred from running issue ads before an election that advocated stopping filibusters against President Bush's judicial nominees. Because Senator Russ Feingold was running for reelection at the time the ad ran and had opposed some of Bush's judicial nominees, the FEC had held the ads fell within the ban on "electioneering communications" which is part of the McCain-Feingold campaign finance regulation law. The court held that, as applied to these ads, which did not expressly advocate Senator Feingold's defeat, the FEC's ruling was an unconstitutional restriction on Wisconsin Right to Life's free speech.

The court struck a welcome blow for the First Amendment and against the speech regulation regime established by McCain-Feingold. But here is what struck me about the Washington Post report on the case: It says the ruling creates a "loophole" in the McCain-Feingold law. And it quotes a law professor opining that the ruling could "create a major loophole in which all groups have to do is say they are running advocacy-issue ads and they can avoid the statute."

Don't these people understand that the real "loophole" we're talking about here is the one created in the First Amendment by the McCain-Feingold law? The Supreme Court 's First Amendment campaign finance jurisprudence in the face of the free speech restrictions embodied in McCain-Feingold-type regulatory regimes has been disappointing to say the least. Muddle through McConnell v. FEC if you need convincing.

There is a good chance that the Wisconsin Right to Life case or a similar one will eventually make it to the Supreme Court for a ruling on the constitutionality of the FEC's application of the pre-election "electioneering communication" ban to issue ads that don't expressly advocate the election or defeat of a candidate. If the Supreme Court happens to uphold the right of groups to broadcast issue ads before an election that urge a position at odds with a candidate, wouldn't it be nice to see a headline, or even a storyline, to the effect that a "loophole" in the First Amendment opened by McCain-Feingold had been closed.

That would be "loophole" closing story of major import.