Political speech

Executing a full-frontal assault on the First Amendment, Congress in 2001 passed McCain-Feingold under the guise of advancing “campaign-finance reform.”

President Bush signed the bill, one of the most egregious domestic mistakes of his presidency.

The legislation included a ban on interest-group advertising near election time.

Despite obvious free-speech concerns, the U.S. Supreme Court — led by the liberal justices — upheld McCain-Feingold in 2003 by a narrow 5-4 vote. Justice Stephen Breyer later admitted — in a Las Vegas speech — that he and other members of the majority ignored the Bill of Rights in favor of speech restrictions they felt would benefit American democracy.

But on Wednesday, the issue-ad controversy made its way back to the high court. And while Justice Breyer will almost certainly remain steadfast in his hostility to the First Amendment, two justices seated since the 2003 ruling may help tip the balance back in favor of free speech.

“Maybe we were wrong last time,” said Justice Antonin Scalia this week, when an attorney argued that the matter had already been decided by the court.

Indeed, most observers walked away from the hearing with the impression that Justice Samuel Alito and Chief Justice John Roberts are likely to be sympathetic to Justice Scalia’s analysis. If so, that could result in a 5-4 ruling tossing out the McCain-Feingold ad restrictions.

We can only hope.

“If the First Amendment means anything, it ought to mean that a nonprofit membership organization … can speak freely about politicians and issues — especially close to an election,” wrote Bradley Smith, former chairman of the Federal Election Commission, in a Washington Times op-ed. “The right to do so is central to the First Amendment and fundamental to the maintenance of a healthy democracy.”

That the U.S. Supreme Court could ever come to a contrary conclusion should frighten freedom-loving Americans.