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A Coordinated Attack on Free Speech

The Supreme Court may get another chance to weigh in on campaign-finance regulation soon. The speech-regulation community (God bless their collective little hearts) is once again suing the Federal Election Commission for not being zealous enough in trying to stamp out coordination of independent political groups with candidates for federal office.

The concern, among the pro-regulation folks, is that supposedly independent groups could actually coordinate their advertising with candidates for federal office. Sounds like free speech? No, not to the regulators it doesn't (nothing does). If advertising or other support for a federal candidate is coordinated, the argument goes, this creates a debt on the part of the politician -- or, worse, the dreaded "appearance of corruption."

The problem, back on planet earth, is that it's virtually impossible to enforce the ban on coordination. That's because there's no limit to the ways in which politicians can coordinate with outside groups. They don't have to sit down for a meeting or exchange phone calls or strategy memos. They can make broad statements about strategy on TV. They can do the same on the Internet. They could wear a particular tie.

The point is, any regulatory regime that could effectively stamp out coordination would be unacceptably intrusive into the internal affairs of independent political groups, raising obvious First Amendment concerns.

Of course, the First Amendment has never been a barrier to McCain-Feingold-Shays-Meehan before. But that doesn't mean the courts will go along.

Anyway ... as usual, Bob Bauer has the definitive legal analysis here.