Free Speech Gets Another Day in Court

The Wall Street Journal
April 24, 2007; Page A19

Most eagerly anticipated Supreme Court cases these days are the political equivalent of the Hatfields and the McCoys, with one side giving no quarter to the other. A notable exception will be argued tomorrow: Federal Election Commission v. Wisconsin Right to Life. Even supporters of abortion rights are rooting for the Wisconsin group to win.

At issue is a provision in the Bipartisan Campaign Reform Act (BCRA) of 2002 which severely restricts "electioneering," or grass-roots advocacy, within 30 days of a primary and 60 days of a general election. The Supreme Court, unfortunately, upheld the basic constitutionality of this provision four years ago in a case that bears my name, but allowed for the possibility that specific applications of it could prove otherwise. Wisconsin Right to Life is testing that claim.

Specifically, the justices will consider a series of television ads the pro-life group ran in the summer and fall of 2004 during a Senate battle over a handful of President Bush's judicial nominees. The ads asked Wisconsin residents to contact the state's two Democratic senators and urge them to allow an up-or-down vote on the president's nominees.

Because one of the senators -- Russell Feingold -- was seeking re-election, the ads were pulled. But did the ads actually advocate for or against a candidate? A three-judge panel in the District of Columbia said no, thereby rejecting, on constitutional grounds, the application of BCRA to the ads in question. The Bush administration appealed and the Supreme Court agreed to hear the case.

A ruling in favor of Wisconsin Right to Life could deal a blow to one of BCRA's central provisions, namely the "blackout" periods during which advocacy groups are forbidden from running issue ads. That would be good. But the larger question is why an advocacy group must defend itself for expressing its views on a question of urgent public interest? This is precisely the question I and many others have been raising for more than a decade.

Five years ago, as my colleagues got ready to pass BCRA, I warned them that three things would result: that rather than reduce the influence of money on politics, they'd drive it further underground; that advocacy groups would be blocked from speaking even on issues unrelated to elections; and that a deadline on issue ads would only lead to campaigns starting earlier, with a greater premium on early fund raising. All three predictions have come true, from the influence of 527s on the last presidential campaign, to the case before the Supreme Court, to primary campaigns 23 months ahead of the next presidential election.

Still, BCRA's potential impact on the presidential primary season isn't what primarily motivated those of us who fought against BCRA. The issue then, as now, is more fundamental. As I say in the amicus brief I submitted for tomorrow's case, "Restricting grass-roots lobbying would silence core political speech that is integral to the functioning of our form of government." The freedom to engage in this political speech is set out clearly in the First Amendment, and BCRA's strict limitation on issue advocacy of any kind during campaign season is a fundamental assault on its spirit and intent.

Those who agree with me have reason to hope that the Supreme Court will overturn this restrictive provision. One reason is that the court already acknowledged its potential harm in McConnell v. FEC; another is that the number of groups wrongly swept up by the blackout provision will only multiply as the primary season becomes longer. The prospect of so many appeals would itself be a sign of the law's instability.

The irony in all of this, of course, lies in another prospect: that groups as dissimilar as Wisconsin Right to Life and Planned Parenthood of Wisconsin might soon stand together to applaud the same ruling.

Mr. McConnell (R., Ky.) is the Senate minority leader.