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Good news on the free speech front
Posted by: McQ on Friday, December 22, 2006

The first shot has been taken at the foundation of the anti First Amendment law, McCain-Feingold:
A federal court on Thursday loosened restrictions on corporations, unions and other special interest groups that run political advertising in peak election season.

The 2-1 ruling said groups may mention candidates by name in commercials as long as they are trying to influence public policy, rather than sway an election.

The ruling came in a challenge to the so-called McCain-Feingold law designed to reduce the influence of big money in political campaigns. The law banned groups from using unrestricted money to run advertisements that name candidates two months before a general election or one month before a primary.

Wisconsin Right to Life, an anti-abortion group, has been fighting the law since 2004, when it sought to run an advertisement urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl, both Democrats, and ask them not to hold up President Bush's judicial nominees.

Because Feingold was running for re-election in 2004, the ad was prohibited. Wisconsin Right to Life argued that it wasn't trying to influence an election and said the law restricted its constitutional right to petition the government.
The court agreed with WRL.
The Federal Election Commission had argued that it needed a consistent "bright line" rule to prevent organizations from influencing elections using phony issue advertisements, but the three-judge panel disagreed.

"The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech," U.S. District Judge Richard Leon wrote.
Or said another way, the law's purpose isn't to make it easy for the FEC to regulate but to ensure the protection of constitutional speech. And if their "bright line" gets in the way of that, the bright line must go (or be redrawn).

The case gets an automatic review with the Supreme Court. As Capt. Ed points out:
They can overturn the ruling of the judges, reaffirming the BCRA and its assault on free political speech. They can, as the AP notes, uphold the narrow nature of today's ruling and create a complicated test for "honest" references to elected officials in issue ads. Lastly, the newly-constituted Roberts court can take this opportunity to reverse the biggest assault on overtly political speech unmatched in generations.
Hopefully this will set the stage to completely overturn this awful law in the future. Again, agreeing with Ed Morrisey:
The real solution is to remove all of these financial shelters for campaign contributions and require nothing but full and immediate disclosure of all donations. It will cut the funding to phony issue organizations and 527s and push the money back to the candidates and the political parties, who can then be held accountable for the messages of the entire campaign. Transparency allows the voters to clearly see whose money funds which candidates, and their votes will determine the legitimacy of those associations, not the FEC and certainly not some prior restraint on political speech.
Absolutely. Transparency in elections should be the goal of the FEC, not restricting constitutionally protected political speech.
 
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