McCain's speech law may trip up campaign

WASHINGTON — At noon on April 25, in Prescott Park in Portsmouth, N.H., John McCain announced his presidential candidacy. Less than two hours earlier, in the U.S. Supreme Court, a lawyer who had been solicitor general in the Clinton administration spoke in the name of McCain. The senator had filed a brief urging the court, in a case arising from an application of the McCain-Feingold law regulating political speech, to uphold the constitutionality of suppressing the speech of a small grass-roots lobbying organization.

In 2004, Wisconsin Right to Life, a small citizens group that posed no conceivable threat of "corruption" to anyone or anything, wanted to run an ad urging Wisconsin's senators, Herb Kohl and Russ Feingold, not to participate in Senate filibusters against the president's judicial nominations. But Feingold was running for re-election, and WRTL's proposed ad was declared an "electioneering communication" (any radio or TV ad that "refers to" a candidate for federal office). And the McCain-Feingold blackout period bans such ads 30 days before a primary or 60 days before a general election — when ads matter most because people are paying attention to politics.

The WRTL case could have been an occasion for McCain to say: This is not what McCain-Feingold was designed to do — it was intended to stop the (as he sees it) "corruption" of elected officials soliciting large "soft money" contributions (not for particular candidates, but for party-building and other activities). Or he could at least have kept quiet. Instead, he went out of his way to stick his thumb in the eye of critics: With his brief to the Supreme Court, he underscored the fact that suppressing inconvenient (to politicians) speech is exactly what he and his McCain-Feingold allies — Fred Thompson was an important one — had in mind.

Often there is tension between "social-issue" conservatives and libertarian conservatives. McCain-Feingold, however, fused these factions in hot opposition. The former felt personally targeted; the latter felt philosophically affronted.

McCain, whose reservoir of righteousness is deep, thinks the parlous condition of his campaign is the price of his principled behavior in supporting an immigration reform that is intensely unpopular with the Republican base (read: the party's nominating electorate) and the war, which is intensely unpopular with almost everyone else. Both positions are principled; both have taken a toll on his collapsing campaign. But years before the immigration controversy reached a boil, and before the war even began, McCain-Feingold had generated more, and more intense, opposition to McCain than he or his supporters in the media comprehend. Being exempt from the McCain-Feingold leash, the media like the law's restraints on rival voices.