Five years after the passage of the law known as McCain-Feingold, even advocates of campaign finance reform should be uncomfortable with what they have wrought. A case the U.S. Supreme Court will hear next week illustrates why.

In the summer of 2004, Senate Democrats were successfully filibustering some of President Bush's judicial nominees. Both of Wisconsin's senators, Democrats Russ Feingold and Herb Kohl, had joined in those filibusters. A nonprofit organization called Wisconsin Right to Life wanted the filibusters to stop and the nominees to be confirmed. To further its cause, the group started airing radio and television commercials. "Qualified candidates aren't getting a chance to serve," a typical script read. "Contact Senators Feingold and Kohl and tell them to oppose the filibuster."

The McCain-Feingold regulations at issue in this case kick in 30 days before a primary election or 60 days before a general election. Feingold was up for re-election in 2004. The pre-primary window began Aug. 15. As of that day, the Wisconsin Right to Life ads violated the law.

Because the case is on its second trip to the Supreme Court, the justices know well the arguments they're likely to hear:

The government will point out that the ads ran afoul of the law because Wisconsin Right to Life used money from its unregulated corporate treasury, rather than a regulated political action committee, to pay for them.

The advocacy group, in turn, will say the ads should have been exempt from the law because they took a position only on an issue, not an election, and were created to avoid explicitly supporting or attacking the two senators. The ads didn't describe how Feingold and Kohl had voted on past filibusters and didn't take a position on whether either senator ought to be re-elected.

In fact, there's a more elemental issue that neither of these lines of argument directly addresses. It's here the justices ought to begin.

The very same ads, paid for with the same money, would have complied with the law had they mentioned only Kohl. Only Feingold was shielded from what the law calls electioneering. Only his hold on office was actually at risk, and so only he was afforded extra protection by the law's regulatory requirements.

Let's stipulate that even in the absence of explicit language, Wisconsin Right to Life was doing more than issue advocacy. The group opposed the voting records of both senators, and its members clearly looked forward to the defeat of both men. Their ability to advocate for that result shouldn't be a function of how cleverly they disguise their motives.

Above all else, the First Amendment protects freedom of speech in order to allow Americans the right to criticize their government. Whatever the intentions of a law's drafters, if it effectively shields elected officials from criticism at the very moment when citizens are deciding whether to rehire those officials, the spirit of the First Amendment has been impermissibly violated. That's the case here, and the justices should say so.

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Monitor editorial