If one does a quick survey of members of Congress, a friend recently suggested, one will discover that none of them likes being criticized. Which is why the legislators must be on cloud nine after news that the Supreme Court will not speed up the appeal of a recent ruling from a federal three-judge panel that the Bipartisan Campaign Reform Act of 2002, otherwise known as McCain-Feingold, can be used to regulate just about any political speech of any sort in the run-up to an election.

The case, Christian Civil League of Maine v. Federal Election Commission, challenged an FEC interpretation of McCain-Feingold prohibiting the group from calling unflattering attention to votes cast by Senator Snowe on gay marriage as another such vote approached. At the heart of the radio ad’s script was this passage: “Unfortunately, your senators voted against the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins immediately and urge them to support the Marriage Protection Amendment when it comes to a vote in early June.”

So far it sounds like normal grassroots politicking, but there are some catches. First, Senator Snowe is up for re-election this year. And second, her name will appear on ballots in a primary election set for June 13, right around the time the Senate may take up the marriage amendment in question. Mix those two factors in with some Orwellian analysis of the text of the ad, and the court concluded that the ad is an “electioneering” communication even though it never once mentions the election or encourages listeners to vote one way or another.

Before McCain-Feingold, “issue ads” were one of the ways free Americans carried on national debate. Groups could highlight an issue and praise or vilify a candidate’s stance on the issue. Senators McCain and Feingold, however, encouraged the idea that such as were a “sham” intended only to circumvent campaign speech regulation, and the courts are now abetting this erosion of the First Amendment’s protection of the right to petition the government.

In this case, the lower court focused in particular on the ad’s use of the word “unfortunately”: “Indeed, the League’s advertisement – which characterizes Senator Snowe’s past stance on the Marriage Protection Amendment as ‘[u]nfortunate[]’ – is the sort of veiled attack that the Supreme Court has warned may improperly influence an election.”

This is great jurisprudence for senators and representatives who don’t like people saying uncomplimentary things about them, but it’s terrible for the rest of us. It also points up a deep flaw in the current tranch of campaign finance laws. As a prominent anti-campaign speech regulation attorney, James Bopp, has noted before, Congress can be in session all through the primary season and until barely a month before a general election. Thus, citizens need to be able to exercise their right to petition constantly. Yet the line between petitioning and campaigning can be blurry. When campaign speech regulations force courts or regulators to draw that line, it turns out to be unacceptable to call a senator’s vote “unfortunate.”

The lower court did suggest that the League could form a political action committee to fund its advertisement, but the League rejects that argument, according to Mr. Bopp, who is litigating the suit on the League’s behalf. The point is that the First Amendment says “Congress shall make no law,” not “Congress shall seek to distinguish between campaigning and petition and then establish suitable rules to regulate each.”

This case has raised a critical point. Campaign speech regulation doesn’t just impinge the First Amendment free speech rights of candidates and other citizens to conduct campaigns. It also threatens to gut the right to petition. The Founding Fathers understood that petition is critical to a functional republic, which is why they listed it separately. Congress of late has been trying to use the charade of “good government” reforms to shield members from any criticism. This case suggests that the solons’ “respect” for the Constitution pales in comparison to their fear of bad publicity.