That Darn First Amendment Loophole Again

The New York Times reports that many are predicting challenges to a National Rifle Association radio news and commentary program, which some see as an attempt to "circumvent" McCain-Feingold. But of course, as Eugene Volokh notes, there's no principled way to distinguish—and arguably no real difference—between protected advocacy journalism and editorializing and restricted electioneering. It seems unlikely the courts would allow the squelching of this speech—though one wonders why it wasn't obvious to them what a problem this would be when they upheld the original restrictions. If they did, of course, what was left of the First Amendment "loophole" would still exist, and the effect would likely be to corrupt less partisan journalism by pushing that money into attempts to capture "real" (which is to say, incumbent) media outlets.