NRO on Campaign Finance

The Editors of National Review comment on the Wisconsin Right to Life decision:

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.

Oh, the horror!! (Sorry couldn't help myself).

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.

One could reasonably argue that the public's cycnicism regarding government has actually increased during the time of McCain-Feingold--certainly it has not improved any.