Center for Competitive Politics on Wisconsin Right to Life case

Brad Smith and Steve Hoerstring have this op-ed in the Washington Times today regarding the Supreme Court case heard today. The money quote:

Neither the government nor Sen. John McCain, who has personally intervened in the case on behalf of the FEC, is shy in revealing the purposes of the electioneering communications ban: preventing criticism of and limiting voter communication with officeholders.

According to Mr. McCain's brief, Wisconsin Right to Life's advertisements possessed "two critical characteristics" that should make them illegal. "First, the ads took a critical stance regarding a candidate's position on an issue. And, second, they referred to the candidate by name in urging the audience to contact the candidate about the issue." The government argues that Wisconsin Right to Life could avoid the ban by leaving Mr. Feingold's name out of its ads, or, because the ban only applies to television and radio, using print media. But experts agree that not naming the officeholder makes the effort less effective, and grass-roots efforts also fare better when run in broadcast media. In other words, the government can tolerate criticism, so long as it is ineffective.

The solution, either don't criticize a candidate by name or do using PAC money. The fist option is absurd on its face and the second is not particularly easy to do on short notice, which is what most tactical political situtations tend to be. The Senate usually schedules votes with short notice, maybe a week and finding funding to run television/radio ads or even print ads in a week is difficult for small groups without an established PAC.

This delay can be fatal to a grass-roots campaign. As Wisconsin Right to Life asserts, "A lost opportunity at the critical time is an opportunity lost forever." And data show that McCain-Feingold freezes many groups out of the process at the most critical time. For one thing, it's not as if Congress stops voting close to an election. Within the 60 days preceding the 2004 election, for example, there was a 156 percent increase in the number of House bills and resolutions introduced over the previous 60-day period. In recent years, within blackout periods, the House and Senate have voted on such high-profile issues as abortion, impeachment, homeland security and appropriations.

Worse yet, the ban on ads often extends far beyond 60 days before the election. In presidential races, for example, the ad ban is triggered for 30 days before the national party conventions and 30 days before the primary in each state reached by a broadcast station. In many broadcast markets, stations serve several states. As a result, in markets such as Chicago, Philadelphia and Washington, D.C., the blackout period extends upward of 200 days in a presidential election year.

Officeholders have no right to insulate themselves from criticism for even a single day, let alone 200. If the First Amendment means anything, it ought to mean that a nonprofit membership organization such as Wisconsin Right to Life can speak freely about politicians and issues -- especially close to an election. The right to do so is central to the First Amendment and fundamental to the maintenance of a healthy democracy.