First Amendment bedrock principles will be on trial come September 6, when a special three-judge panel of the federal district court in Washington convenes to decide how much the right to petition is worth these days. A grassroots group, Wisconsin Right to Life, will be in court arguing for its right to air radio ads in respect of current legislation even, gasp, in the midst of an election season. It's a sign of just how out-of-control campaign speech regulation has gotten that Americans need to ask a federal court for a temporary restraining order to mention a senator's name on the airwaves.
Wisconsin Right to Life is trying to petition the government in respect of the Child Custody Protection Act. The bill would make it illegal to transport a minor girl across state lines to procure an abortion without permission of the minor girl's parents. The measure has passed both houses of Congress, but Senate Democrats are preventing the bill from going to a conference committee, which would be the next step toward final passage. One of Wisconsin's senators, Herbert Kohl, supports the bill. The other, Russell Feingold, opposes it. Wisconsin Right to Life wants to air ads starting September 5 praising Senator Kohl and criticizing Senator Feingold.
Now the plot thickens. Since Senator Kohl is on a primary ballot on September 12, the ads allegedly run afoul of the what might as well be called the McCain-Feingold (yes, that Feingold) Incumbent Insulation Act, better known as the Bipartisan Campaign Reform Act of 2002. Thus, the good citizens of Wisconsin Right to Life must seek a court's permission to talk about their elected officials in public. Henry VIII or George III couldn't have rigged the system better themselves.
Similar challenges to campaign speech regulation have met a mixed fate in the courts.The current Wisconsin case is part of a larger controversy involving Wisconsin Right to Life that has already racked up a limited victory at the Supreme Court, which ruled that the case could proceed. The court also ruled that campaign expenditures are equivalent to protected speech. That came when the justices struck down a campaign finance law in Vermont. The high court justices declined to hurry up consideration of a Maine case resembling the Wisconsin case, in which a group opposed to gay marriage tried to call unflattering attention to Senator Snowe's position on marriage ahead of Senate action that coincided with primary season.
The difference between Maine and Wisconsin is instructive. In Maine, the ad cast the primary-contending incumbent in a negative light. Wisconsin Right to Life, however, wants to praise the incumbent in the primary. Above all, this case demonstrates that the purpose of campaign speech regulation isn't to cut down on "unfair" negative campaigning, if such a thing even exists. Rather, McCain-Feingold exists to take politics out of the hands of citizens and put it in the hands of the politicians. And to protect incumbents. The question on September 6 will be whether a federal court can appreciate that this is exactly what the First Amendment was designed to prevent.