Politics & Policy

Slightly Freer Speech

The campaign-finance regulators have, we must admit, a certain internal logic to their case. If corporations must be prohibited from contributing to political candidates because of the danger of corruption, then presumably they must also be prohibited from running advertisements for or against candidates: Such advertisements would be the functional equivalent of contributions. They, too, could prove corrupting. And if an advertisement saying that “Senator X should be defeated” must be banned, then so too should an advertisement saying “Senator X’s bill would destroy America.” An advertisement that appears to concern a public-policy issue may really be a campaign ad in disguise.

It is that logic that led to yesterday’s Supreme Court case, Federal Election Commission v. Wisconsin Right to Life. In 2002, Congress enacted the McCain-Feingold law to regulate campaign finance. To prevent “sham issue ads” from being run, the law imposed restrictions on how issue ads could be financed in the run-up to a primary or general election. The Supreme Court, in 2003, said that these restrictions were, on their face, constitutional.

Yesterday, the Court ruled that it would be unconstitutional to apply these restrictions too broadly. If an advertisement “may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate,” then it should be treated as an issue ad and thus exempted from the regulations. Five justices agreed with that result. Three justices — in order of seniority, Antonin Scalia, Anthony Kennedy, and Clarence Thomas — would have gone further. They argue, persuasively, that the First Amendment does not allow the government to distinguish between “genuine” and “sham” policy advocacy for the purpose of triggering regulations.

Four justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer — dissented. Allowing sham issue ads, they argue, would increase public “cynicism” by creating the appearance of corruption. Both parts of that argument depart from the Constitution’s standards. Actual corruption is illegal. A false perception of corruption cannot justify restrictions on free speech. Combating cynicism, meanwhile, is not a legitimate task of the government, and certainly not a justification for limiting speech: Otherwise every edition of every newspaper could be censored.

Senator John McCain, who filed a brief with the Court urging it to side with the liberal justices, responded to the decision by calling it “regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election.” The Washington Post, a longtime cheerleader for campaign-finance regulation, conceded that the specific advertisements involved in the case were “anodyne” but argued that it was nonetheless better to ban them than to take the risk that sham issue ads would also run: “Yesterday’s ruling reopens a dangerous loophole.”

That dangerous loophole is otherwise known as the First Amendment. If that amendment means anything, it has to mean that government should err on the side of tolerating more speech rather than less. If the power of judicial review means anything, it has to mean that the federal judiciary will not enforce laws that violate that principle. If the pursuit of campaign-finance “reform” ineluctably leads its advocates to regard free speech as a loophole, maybe they should reconsider whether it is such a good idea.


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