I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Except they did. The Bipartisan Campaign Reform Act, aka McCain-Feingold, aka The Incumbent Protection Act, creates a serious abridgment of free speech while doing little to achieve it’s intended purpose of reducing the influence of big money in political campaigns.

One major provision of the act, the part banning issue advertising referring to candidates for federal election without expressly advocating their election or defeat in the 60 days prior to a general election, was loosened by a federal court today.

The 2-1 ruling said groups may mention candidates by name in commercials as long as they are trying to influence public policy, rather than sway an election.

[...]

Wisconsin Right to Life, an anti-abortion group, has been fighting the law since 2004, when it sought to run an advertisement urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl, both Democrats, and ask them not to hold up President Bush’s judicial nominees.

Because Feingold was running for re-election in 2004, the ad was prohibited. Wisconsin Right to Life argued that it wasn’t trying to influence an election and said the law restricted its constitutional right to petition the government.

While the court did not address the entirety of the Act it did seek to modify this one provision, as Captain Ed notes.

The restriction on political speech that keeps groups from buying advertising that names politicians violates the fundamental reason for the First Amendment — to allow Americans to criticize their elected officials. While the court did not recognize the entire egregiousness of this BCRA provision, it did recognize that the idea of never being able to name elected officials in advertising within 60 days of an election regardless of the nature of the reference is a ludicrous standard.

The case now heads to the Supreme Court for an automatic review. What the court will decide is anything but clear. However, Ed lays out the various choices very well.

They can overturn the ruling of the judges, reaffirming the BCRA and its assault on free political speech. They can, as the AP notes, uphold the narrow nature of today’s ruling and create a complicated test for “honest” references to elected officials in issue ads. Lastly, the newly-constituted Roberts court can take this opportunity to reverse the biggest assault on overtly political speech unmatched in generations.

Overturning the ruling would be a chilling continuation of this affront to free speech. Creating a test that would accurately and fairly “test for “honest” references to elected officials in issue ads” is hard to envision working. From the AP story:

The Federal Election Commission had argued that it needed a consistent “bright line” rule to prevent organizations from influencing elections using phony issue advertisements, but the three-judge panel disagreed.

“The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech,” U.S. District Judge Richard Leon wrote. [my emphasis]

We can hope that Ed’s third option, “reverse the biggest assault on overtly political speech”, is the one the court takes.

The optimist it me can see it happening.

My inner pessimist isn’t holding it’s breath.

Cross-posted at Iowa Voice where I’m supposed to be helping Brian while he’s away.