Toward freer speech

THE U.S. SUPREME COURT astonished everyone in 2003 when it upheld the constitutionality of severe limits on political speech. The good news is that the court may be having some sober second thoughts about that dubious decision.

The speech-curtailing measure at issue is part of the broader McCain-Feingold campaign finance law. The centerpiece of that law banned “soft money” contributions to political parties that were used to circumvent limits on how much donors could contribute to candidates for federal office. What is glaringly offensive to the 1st Amendment is an accompanying ban on “electioneering communications” paid for out of the treasuries of independent organizations.

As defined by the law, electioneering communications are advertisements that mention a candidate for federal office and are broadcast within 30 days of a primary election or within 60 days of a general election. They need not (and usually do not) tell viewers to vote for or against a candidate.

In 2003, the Supreme Court ruled that McCain-Feingold’s restrictions on these ads were not unconstitutional on their face. But an antiabortion group called Wisconsin Right to Life is arguing that the ban was applied in an unconstitutional way to prevent it from airing three TV advertisements in 2004. The ads asked viewers to tell the state’s two senators -- only one of whom was up for reelection -- to allow a vote on President Bush’s judicial nominations.

Last month, a three-judge federal court in Washington ruled that the “issue ad” provision deprived Wisconsin Right to Life of its free-speech rights. If the Supreme Court agrees, as it should, political speech will be given more breathing room. And such a ruling needn’t derail the soft-money provisions of the McCain-Feingold legislation.

There are a lot of phoney “issue ads” out there (“Tell Sen. Smith you disagree with him about Iraq” can sound a lot like an endorsement for challenger Jones), but the court has to err on the side of preserving political speech. When it comes to speaking out about a candidate, opponents (and news outlets like ours) should not have a monopoly in the closing days of a campaign, especially if the outside organization weighing in is genuinely acting on its own.

The particular facts of the Wisconsin Right to Life ads are a compelling indictment of the law’s overreach and should prod the high court to reconsider whether the law could be constitutional under any set of facts. The addition of Justice Samuel A. Alito Jr. may dictate a different outcome -- retired Justice Sandra Day O’Connor cast the deciding vote upholding the limits in 2003.

But if the court isn’t willing to go back to the drawing board, Congress should. An advertisement praising or criticizing a politician -- even one seeking reelection -- has more in common with the endorsement editorials that appear on this page than it does with the campaign contributions (in hard or soft dollars) that have received only minimal 1st Amendment protection from the courts.

The “bright line” that needs to be drawn is the one between financing someone else’s message and articulating your own.