So, if McCain-Feingold were used to regulate political speech on the Internet, Morrissey’s links would be classified by regulators as an in-kind contribution to Kerry’s campaign (whose candidate Morrissey heatedly opposed), or else federal regulators would need to examine each link to determine whether it was intended in a favorable, hostile or neutral fashion. The situation, in short, illustrates the headaches and unfairness that speech restrictions would involve if extended to the Internet.

Several FEC commissioners have come forward to damp down fears of regulation of weblogs. But the judge’s ruling still stands, and it is easy to see how regulation of online political advertising could, over time, move into broader restrictions on Internet comment.

Critics are right that Congress needs to consider amending federal statutes to address this concern. Otherwise, the potential would exist for a troubling intrusion by the federal government into a fundamental American right. “

Nor is the Omaha World Herald alone. From the Chicago Tribune in a news article:

“The furor has its origins in the 2002 McCain-Feingold law, which regulates campaign financing while exempting some online activity. But last September, U.S. District Judge Colleen Kollar-Kotelly ruled that the Internet exemption “undermines” campaign finance law, and essentially ordered the FEC to redraw its rules.

The case was filed in 2002 by Reps. Christopher Shays (R-Conn.) and Martin Meehan (D-Mass), both sponsors of the McCain-Feingold law. The lawmakers sued the commission because they thought the FEC exemption misinterpreted the campaign finance law through “loopholes that had allowed soft money to corrupt federal elections,” according to court records. Kollar-Kotelly agreed, striking down the exemption.

Some critics have been upset by online activities that they see as end-runs around the campaign law. Watchdog groups have cited TV-style political ads that ran during the 2004 campaign but–because they aired online–were exempt from FEC scrutiny. Others noted that candidates have paid bloggers to write favorably about them.

Other issues are trickier. If a blog features a link to a campaign Web site–which can be a valuable political gift–is that an “in-kind contribution” to that campaign, or free speech protected by the 1st Amendment?”

The question here is not the text of the McCain-Feingold law itself, as antithetical to the Constitution, liberty and democracy as that law may be but rather the interpretation that will emerge ten Federal lawsuits down the road as overreaching Federal judges are goaded by hyperpartisan, elitist, activist-lawyers seeking advantage for their party at the expense of our ancient liberties. Rights in a free society are seldom abolished whole; the enemies of an open society prefer to erode them bit by bit.

McCain-Feingold needs to be repealed. No other solution will do.

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