Benefit of the Doubt

The Supreme Court rocked the 2008 presidential race by upsetting, in late June, a provision of the McCain-Feingold speech-regulation law that banned any radio or TV ad mentioning the name of a candidate for federal office in the 30 days before a primary election and the 60 days before a general election. In particular, the case at hand — FEC vs. Wisconsin Right to Life, Inc. — dealt with so-called "sham" issue ads. These ads lobby federal officeholders to vote one way or the other on issues before them; however, such ads were banned on the grounds that they might effect the outcomes of elections. Heaven forfend. Chief Justice Roberts famously declared in his majority opinion that when it comes to weighing core First Amendment speech against the pursuit of "clean" elections, "we give the benefit of the doubt to speech, not censorship."

Now it is time for the Federal Election Commission to put this into practice. Coming as it has ahead of a presidential election cycle, the High Court's decision must now be translated into workable regulations before the first primaries and caucuses get underway — something that could come as early as December of this year, given the accelerated schedule that's taking shape (one which could see the Iowa Caucuses taking place before Christmas). To this end, the FEC has begun a rule-making process, which it hopes to wrap up before the end of November. We don't envy the FEC its task, trying to make sense (guidelines) out of nonsense (the idea that federal bureaucrats can separate legitimate from illegitimate speech). Providing some clarity is the most the body can do for now to mitigate the damage caused to the First Amendment by the current regulatory regime.

The FEC faces a number of questions: Can these newly deregulated ads lobby individuals who do not yet hold federal office (e.g. "Call Mitt Romney and ask him to pledge not to raise taxes")? What's the line between an issue ad and an ad that calls on people to vote for or against a specific candidate? Do groups running issue ads have to disclose their donors to the FEC as if they were engaging in election-related activity? Clearly the Supreme Court was urging that the maximum latitude possible be given to groups engaged in grassroots lobbying — such as the American Civil Liberties Union, the National Rifle Association, pro-life groups, pro-abortion groups, and all of the myriad interests who might wish to speak in our political process. As Mr. Roberts wrote, "A court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." A restoration of the First Amendment will require the repeal of most of our existing campaign-finance laws. The FEC can move in the right direction by giving citizens the benefit of the doubt.