Permission to Speak Freely

The "electioneering communications" ban silences interest groups when their messages matter most

As of Friday, when the 60-day blackout period for "electioneering communications" by nonprofit interest groups begins, political speech will enjoy less protection than dirty movies. While a sexually explicit film is protected by the First Amendment if it has some socially redeeming value, an "electioneering communication" is forbidden even if it deals with important and timely public policy issues.

Supporters of this ban, imposed by the Bipartisan Campaign Reform Act of 2002, say they want to eliminate "sham issue ads" that are aimed at electing or defeating a candidate and therefore should be funded only by political action committees subject to campaign contribution limits. But since the ban applies to any TV or radio spot that mentions a federal official who is up for re-election, it also prohibits genuine issue ads.

Wisconsin Right to Life, for instance, wants to run a radio ad encouraging listeners to contact the state's senators, Herb Kohl and Russell Feingold (both Democrats), and urge them to support passage of a stalled anti-abortion bill. The group has asked a federal judge in D.C. for an injunction that would allow it to air the ad during September without a legal penalty.

It seems Americans now need permission to speak out on political issues and petition the government. I'd suggest a constitutional amendment protecting those rights, but I thought we already had one.

The Wisconsin Right to Life ad seeks passage of the Child Custody Protection Act, which prohibits transporting a minor across state lines to obtain an abortion without her parents' permission. Both houses of Congress have approved versions of the bill, but the votes of 60 senators are required to send it to conference committee.

The ad supporting the bill cannot plausibly be viewed as an attempt to elect or defeat a candidate. Kohl voted for the bill, while Feingold, who voted against it, is not up for re-election this year. Wisconsin Right to Life has not endorsed Kohl or his Republican opponent. But because of the ad's timing, it is automatically counted as an "electioneering communication," and Wisconsin Right to Life is barred from effectively lobbying for the bill when its efforts matter most.

The American Civil Liberties Union, which supports Wisconsin Right to Life's challenge of the ad restrictions, notes that Congress often takes up high-profile legislation around election time, either because members want to impress voters with the positions they take or because congressional leaders want to discomfit the other party. Consequently, interest groups may be silenced when they most want to speak out.

During the 60 days leading up to the 2004 elections, for example, the House or Senate voted on bills dealing with hate crimes, airline "no fly" lists, spyware regulation, the death penalty, detention and removal of aliens, restrictions on travel to Cuba, funding for DNA testing in criminal cases, constitutional challenges to the Pledge of Allegiance, and a constitutional amendment banning same-sex marriage–all matters of concern to the ACLU. A radio ad about immigration legislation the ACLU ran that October would have been illegal had any of the senators to which it referred been running for re-election. Similarly, if the PATRIOT Act's reauthorization had happened this fall instead of last, the ACLU's ability to speak out on one of its signature issues would have been severely restricted.

In January the Supreme Court, which three years ago upheld the general terms of the ad ban, said grassroots organizations can still challenge its application to specific ads. This means interest groups can either air their ads and fight the law's enforcement after the fact or, like Wisconsin Right to Life, seek clearance from a court ahead of time–both risky and expensive propositions for organizations that often operate on a shoestring budget.

Political groups have always needed money to exercise their First Amendment rights. Now they need money to win them back.