This week, at their conference, the justices of the highest court in the land will decide whether to hear the case of Wisconsin Right to Life v. Federal Election Commission for a second term in a row.

As is apparent from the title, this is yet another case about federal campaign finance law, specifically, the Mc-Cain-Feingold "reforms" that were supposed to "solve" the "problem" of money in politics.  But, more than four years after McCain-Feingold became law and more than three years after a bare majority of the Supreme Court upheld most of the law, the only real change anyone has seen is the increase in legal squabbling taking place in the courts. 

Indeed, the Wisconsin Right to Life case highlights just how absurd the federal campaign finance rules have become as a result of Mc-Cain-Feingold and the rulings interpreting the law.

Wisconsin Right to Life decided it wanted to broadcast radio advertisements in the summer and fall of 2004 asking Wisconsin citizens to call their U.S. Senators, Russell Feingold and Herb Kohl, to urge them not to filibuster President George W. Bush's judicial nominees. 

However, Wisconsin Right to Life had a problem.  Their radio advertisements would specifically tell listeners to "[c]ontact Senators Feingold and Kohl," and the advertisements would air both during the 30 days before the Congressional primary election in September and the 60 days before the Congressional election in November.  And, for this reason, the advertisements might be illegal "electioneering communications" because the group was going to pay for them with general donations. 

Senator Feingold was up for re-election on those ballots, and, under McCain-Feingold, groups like Wisconsin Right to Life could not run broadcast advertisements that "refer[ ] to a clearly identified candidate for federal office" before his or her election using general donations.

A little more than three years ago, the Supreme Court upheld that part of the McCain-Feingold law in the abstract by a five-to-four vote.  But, at that time, the justices did not consider any specific advertisements.  As a result, believing the group still had a First Amendment right to freely speak about an issue of obvious political importance, Wisconsin Right to Life filed suit in federal court claiming the group should be allowed to run its advertisements.

Last term, the Supreme Court unanimously ruled that groups like Wisconsin Right to Life did have the legal right to bring a lawsuit to defend their free speech right to air a specific advertisement.  And, after the case went back to the lower court, a two-to-one majority below ruled that the Wisconsin Right to Life advertisements did not run afoul of McCain-Feingold.

Now if you don't think all of that is already confusing and ridiculous enough, you should really read the lower court's decision ruling that applying McCain-Feingold to the Wisconsin Right to Life advertisements would be unconstitutional.

That is because the lower court majority essentially draws the following line in the sand:  The Wisconsin Right to Life advertisements are constitutionally protected free speech because they never were going to say anything about whether Senators Feingold and Kohl had ever or were ever going to support the filibusters against President Bush's judicial nominees. 

In other words, groups like Wisconsin Right to Life have a First Amendment right to talk about their elected officials close to an election so long as they do not say anything that promotes, attacks, supports, or opposes the candidates.

What a strange free-speech world our campaign finance laws and court rulings have created in which the speech that is protected is the speech that takes no position on the issues.  Every indication is that the Supreme Court will hear this case and uphold Wisconsin Right to Life's right to run these ads.  We think that's the least the justices can do!