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![](media/image1.png){width="0.3326388888888889in"
height="0.22777777777777777in"}  **MSNBC.com**

Speech Crime in Wisconsin\
**The rickety scaffolding of campaign-finance laws is collapsing into
wholesome chaos. The 2008 campaign may be quite different**

**By George F. Will**

Newsweek

Aug. 16 issue - The people who produced the new campaign-finance
law---the interest groups that lobbied for McCain-Feingold, the
legislators who passed it, the Supreme Court justices who declared it
compatible with the First Amendment---will say it was not expected to
work this way. But it was.

It was always about expanding the regulation by government, meaning by
the political class, of speech inconvenient to the political class.
Consider the case of McCain-Feingold against Wisconsin Right to Life.

WRL is one of the many thousands of advocacy organizations through which
Americans cooperate to advance their social agendas. It is through such
not-for-profit corporations, ranging from the ACLU to the NRA, that
millions of citizens refute the worrywarts who say that Americans are
gripped by civic apathy---\"bowling alone\" and all that. But
McCain-Feingold\'s message to such Americans is: Speak less, and speak
not at all when it matters most---when people are paying attention
because elections are near.

WRL is distressed by Democratic U.S. senators\' blocking confirmation
votes on many of President Bush\'s judicial nominees, often because the
Democrats consider the nominees unsympathetic to abortion rights. WRL
wants the people of Wisconsin to urge their U.S. senators, Russell
Feingold and Herb Kohl, both Democrats, to vote to allow up or down
votes on the nominees. So WRL wants to run several broadcast ads like
this one:

**Pastor:**  *And who gives this woman to be married to this man?*
**Bride's Father:**  *Well, as father of the bride, I certainly could.
But instead, I\'d like to share a few tips on how to properly install
drywall. Now, you put the drywall up\...***Voice-over:**  *Sometimes
it\'s just not fair to delay an important decision. But in Washington
it\'s happening. A group of senators is using the filibuster delay
tactic to block federal judicial nominees from a simple \"yes\" or
\"no\" vote. So qualified candidates don\'t get a chance to serve. Yes,
it\'s politics at work, causing gridlock and backing up some of our
courts to a state of emergency*. **Bride's Father:**  *Then you get your
joint compound and your joint tape and put the tape over \...*
**Voice-over:**  *Contact Senators Feingold and Kohl and tell them to
oppose the filibuster.*

Why is this exercise of free speech a problem? Because it *mentions*
Feingold.

The McCain-Feingold law makes it a crime to use corporate funds---the
only funds most advocacy organizations have---to pay for any broadcast,
cable or satellite \"electioneering communication\" that is \"targeted
to the relevant electorate\" within 30 days before a primary election or
60 days before a general election. And it defines \"electioneering
communication\" as one that \"refers to a clearly identified candidate
for Federal office.\"

*Referring*. That is the potential speech crime here. WRL\'s ad refers
to Feingold, who is running for renomination in Wisconsin\'s Sept. 14
primary. So WRL\'s ad, which is timed to arouse voters in the closing
days of this Senate session, seems to be forbidden, beginning Aug. 15.

Never mind that the ad deals only with a legislative issue, not an
election. Or that it mentions no political party, does not advocate the
election or defeat of any candidate and does not comment on any
candidate\'s character or fitness for office. Never mind all that. The
law is clear. Dumb, but clear.

WRL argues that when the Supreme Court held that McCain-Feingold is
facially constitutional, it left the door open for appeals against the
law \"as applied.\" WRL argues that its ad is not the sort of political
speech that McCain-Feingold supporters wanted to control. But it is.

The political class hates having independent groups of citizens butting
into the country\'s political conversation. The premise of
McCain-Feingold is that elections are the private property of the
political class, whose members should be empowered to control the topics
of discussion during any election season. During the debate on
McCain-Feingold, speaker after speaker complained that \"issue-advocacy
ads are a nightmare\" (Sen. Paul Wellstone) and that McCain-Feingold is
\"about slowing political advertising\" (Sen. Maria Cantwell).

Fortunately, the rickety scaffolding of campaign-finance regulations is
collapsing and being replaced by wholesome chaos. Internet fund-raising
by candidates, and the gushers of contributions to the 527 advocacy
groups (named for the pertinent provision of the tax code), are
demonstrating the futility---not to mention the unwisdom---of government
attempts to impose a regime of speech rationing.

Because of the 527s and other measures adopted to evade McCain-Feingold
limits on political money---measures most successfully developed by
Democrats who favored McCain-Feingold---the 2008 campaign may be
dramatically different. Then there may be two tiers of
candidates---those who accept public funding and the spending (i.e.,
speech) limits that come with it, and those who do not. Only the latter
will be serious candidates. Reform was not expected to work out this
way. But reformers are often surprised, unpleasantly, by the
consequences of their handiwork.

*© 2004 Newsweek, Inc.*

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