How three judges managed to 'reform' the First Amendment
Tuesday, May 13, 2003

One was tempted, upon hearing that the special three judge federal panel's decision had come down, to figuratively stick one's tongue out at John McCain and gloat.

After all, the judges did seem to agree with the good senator's critics who have been saying since he first got into the campaign "reform" business that he doesn't have a clue as to either the meaning or importance of the First Amendment to our Constitution.

The initial news reports all indicated that the panel's findings amounted to a big loss for “reform” advocates. And at one level it did. In fact, however, a reading of the actual decision makes it clear that the Supreme Court will have to straighten out a mess made worse by these judges who got the main points right, but much else wrong.

This was, in part, a result of the fact that they didn't seem to know what they were doing. Back in 1973, the Senate attached what was known as an expedited review provision to that era's campaign reform legislation. This granted critics standing and allowed an appeal to go directly to the U.S. Court of Appeals and then to the Supreme Court.

The result, of course, was the decision in Buckley v. Valeo that made it so difficult for many to imagine the federal courts upholding what McCain and his buddies came up with this time. The court in Buckley said many things. But most important among them was the recognition that regulations on campaign expenditures must be considered suspect on First Amendment grounds and that any regulations on such speech have to pass what has come to be known as a bright line test.

This test made it very difficult to regulate what are known as issue-advocacy ads. It is based on the view that regulations affecting speech have to be narrowly drawn and quite specific -- making it clear what is and is not permissible by establishing a bright line between the two. In the context of that decision, the court held in Buckley that while it might be all right to regulate what became known as express advocacy -- in which an advertisement specifically advocated the election or defeat of a named candidate -- such regulations could not go further.

McCain and those who drafted the current reforms wanted to go much further. The congressional debate prior to passage of the bill made clear that few incumbent members of Congress, regardless of party, liked the idea that people are able to buy ads that criticize them in any way. These are, of course, what they see as "negative" ads and most of them would like them banned. In other words they want to shut up people who disagree with them.

To accomplish this, the new law prohibited advocacy ads 30 days before any primary and 60 days prior to any general election if such ads named any candidate running in such elections, regardless of whether they expressly sought the candidate's election or defeat. They also sought to further weaken the political parties by banning what has come to be known as "soft money" and included a myriad of additional regulations that any rational person could see violated the free speech guarantees so vital to the functioning of a free society.

Unfortunately, however, the expedited review provisions in McCain-Feingold differed from those described above. This time the appeal went to a three-judge panel comprised of one appeals court judge and two federal district judges. They couldn't agree even on the facts of the case. Two of them then proceeded to base their decision on a sham study -- designed, fixed, paid for and trotted out by the reformers -- to argue that the old bright line test should be abandoned in favor of a subjective standard allowing government bureaucrats to determine on a case by case basis what speech should be regulated.

Thus, even as they struck down the 30- and 60-day absolute bans on advocacy ads, they put into place an even more pernicious scheme that would subject political advocates to regulation and even criminal prosecution should they say anything at any time that offends government regulators.

The only appeals court judge on the panel said this was unconstitutional nonsense, argued that the court had it right in Buckley and would have thrown out all the newly proposed regulations on issues advocacy advertising and much else. Let's hope the Supreme Court agrees with her.