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Is McCain-Feingold Act poised for a setback?

By Tony Mauro
First Amendment Center legal correspondent
01.22.07

WASHINGTON — When President Bush signed the Bipartisan Campaign Finance Reform Act in 2002, he did so with reservations. The law, he said, presented “serious constitutional concerns.”

From then on, his administration has dutifully defended the law’s constitutionality, and the Supreme Court has largely gone along. But now, with two Bush appointees on the Court, the president’s initial concerns may gain new potency, with the result that a significant part of the law may soon be struck down.

On Jan. 19, the Supreme Court agreed to consider a case this term that endangers what was long viewed as the most vulnerable provision of the law: its pre-election ban on “electioneering communications” directly funded by corporations and unions.

Retired Justice Sandra Day O’Connor supported the ban, but critics of the law are pinning their hopes on her successor, Samuel Alito Jr., to cast a fifth vote against it. (Chief Justice John Roberts Jr., the other Bush appointee, may also oppose the law, but so did his predecessor, the late William Rehnquist.)

“It’s great news that a new Supreme Court will take a fresh look” at the law, said Curt Levey, executive director of the Committee for Justice, which fought for the confirmation of Bush’s nominees. Levey predicted that the “constitutionalist” Alito would provide the key vote to strike down the ad ban.

In his 15 years as an appeals judge, Alito did not rule in a campaign-finance case, but if Levey is right, Alito would join with Roberts and the Court’s three other campaign-law critics, Antonin Scalia, Clarence Thomas and Anthony Kennedy, to strike down the statute.

At issue in Federal Election Commission v. Wisconsin Right to Life is a series of ads financed by the Wisconsin anti-abortion group in 2004. The ads criticized by name Sens. Russ Feingold and Herb Kohl, both Democrats, for blocking Bush’s judicial nominees. But because Feingold was running for re-election, the messages ran afoul of the law, which bans messages referring to clearly identified candidates within 60 days of a general election or 30 days of a primary — if those messages are financed directly by corporations or unions. The law allows such ads if they are paid for by corporate or union political-action committees, which are governed by greater regulation and disclosure rules.

In its 2003 ruling in McConnell v. FEC, the high court upheld the electioneering-ad ban on its face — in other words, in the absence of any dispute over a real advertisement. When Wisconsin Right to Life sought an injunction against enforcement of the law, the district court interpreted the McConnell ruling also to preclude challenges to the law in real disputes.

But when the Wisconsin case went to the Supreme Court in January 2006, just days before Bush appointee Alito replaced O’Connor, the Court rejected that view, ruling that the McConnell decision did not foreclose further challenges to the law as applied to real advertisements.

During oral arguments, Roberts also accused government lawyers of a “classic bait and switch,” because before McConnell, they argued that as-applied challenges would be allowed, and now they were arguing such challenges were precluded.

The Wisconsin case returned to lower courts, where a three-judge panel struck down the electioneering-ad provision as a First Amendment violation. Going strictly by the words of the disputed ads, the panel concluded they were not intended to influence an election.

The Bush administration appealed directly to the Supreme Court, prompting the Court to accept review on Jan. 19. The Court ordered an expedited briefing schedule so that the case can be ruled on before this term expires in June instead of next term — which begins in October, when a ruling would come perilously close to the 2008 election primaries.

In the case now before the Court, the administration defends the “bright line” ad ban as the best way to keep corporations and unions from evading it. The brief by Solicitor General Paul Clement also asserts that the context of the ads, not just their words, should be assessed in determining if they are meant to influence an election.

In a separate brief on behalf of Sen. John McCain, R-Ariz., and other supporters of the law, former Solicitor General Seth Waxman argues that the lower court ruling “stands as an obstacle to the full achievement of the purposes of a critically important federal law.” (McCain also filed a case on this matter, McCain v. Wisconsin Right to Life, which has been consolidated with the FEC case.)

In its brief, Wisconsin Right to Life also urged the high court to review the issue, arguing that its ads were a form of “grassroots lobbying” that should be protected by the First Amendment.


Related

Court sidesteps ruling on campaign finance

Justices say lower court should take new look at challenge to federal restrictions on political ads. 01.23.06

Federal court: Issue ads OK during election season
Judges rule 2-1 that groups may mention candidates by name in commercials as long as they are trying to influence public policy, not sway election. 12.22.06

Federal court asked to toss Wis. judicial-campaign rules
Lawsuit says regulations limiting judicial candidates' comments violate free speech, deprive citizens of information they need to cast informed votes. 01.03.07

Justices will hear campaign-finance case
FEC v. Wisconsin Right to Life involves restrictions on issue ads by special-interest groups, corporations, labor unions during election campaigns. 01.19.07

High court skeptical of issue-ad limits
Justice Alito, who wasn't on bench last time campaign-finance case was considered, may hold pivotal vote. 04.25.07

Court ready to chip away at campaign-finance law?
By Tony Mauro Two justices suggest issue-ad ban squelches political speech when it matters most. 04.26.07

2006-07 Supreme Court case tracker

Campaign finance overview


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