This article originally provided by
The Washington Post
January 19, 2007
High Court To Revisit Campaign Finance Law
New Lineup on Bench Will Consider Ad Limits
By Robert Barnes and Matthew Mosk
Washington Post Staff Writers
The Supreme Court agreed yesterday to revisit the landmark 2002 legislation
overhauling the nation's campaign finance laws, moving to settle the role of
campaign spending by corporations, unions and special interest groups in time
for the 2008 presidential primaries.
It would be the first time the court has reviewed the McCain-Feingold law of
2002 since justices ruled 5 to 4 three years ago that the act was
constitutional. Since then, Justice Sandra Day O'Connor, who was in the
majority, has been replaced by Justice Samuel A. Alito Jr.
At issue in the case is the question of whether so-called issue advocacy ads
paid for by the general funds of special interest groups and broadcast in the
period before a federal election may mention specific candidates. A three-judge
panel in Washington last month overturned that prohibition, which is one of the
key provisions of the law known formally as the Bipartisan Campaign Reform Act.
"The stakes are enormous," said Michael E. Toner, a Federal Election
Commission member who served on President Bush's campaign in 2000. "We're
watching this case very closely."
The specific rule against naming a candidate -- 30 days before a primary and
60 days before a general election -- is one of the bright lines in the act
governing the role special interest groups may play in the election and, to its
supporters, one of the act's virtues.
"One of the advantages of McCain-Feingold is that it's clear," said Trevor
Potter, an adviser to
Sen. John McCain (R-Ariz.), the law's namesake, and president of the
Campaign Legal Center.
If the justices uphold the lower-court ruling, Potter predicts additional
disputes in the courts and at the FEC about when an independent group's
commercial would be considered legitimate issue advocacy, and when it would be
considered an attempt to influence the outcome of an election.
"You will have endless challenges to see where the line should be," he said.
But James Bopp Jr., the Indiana attorney and Republican National Committee
member who brought the case on behalf of Wisconsin Right to Life, said the
current prohibition cracks down on groups that are merely intending to influence
lawmakers in the manner encouraged by the First Amendment.
The right to petition the government, Bopp said, should not be limited simply
because it makes campaign finance laws too complicated.
"The court is perfectly capable of drawing a sensible and reasonable line
between grass-roots lobbying and influencing an election," Bopp said.
The justices moved quickly to take the case, which they will hear in April,
in time for a ruling by the end of the court's summer term. It will make for
unusual political pairings.
The Republican National Committee has been one of the strongest critics of
the law, although McCain is one of his party's leading presidential contenders
and a party to the appeal of the lower court's decision. The Bush administration
is defending the Federal Election Commission against the Wisconsin antiabortion
group, which has been a strong supporter of the president.
Sen. Russell Feingold (D-Wis.) is not only one of the sponsors of the law
but also the subject of the ads in question.
The 2004 radio ads put out by Wisconsin Right to Life said that a group of
senators in Washington was keeping Bush's judicial nominees from getting a vote
in the Senate and asked listeners to tell Feingold and the state's other
senator, Herb Kohl (D), not to participate. "Contact Sens. Feingold and Kohl and
tell them to oppose the filibuster," the announcer said.
But because Feingold was up for reelection, the FEC said that the group could
not run the ads in the closing weeks of the election.
U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge
David B. Sentelle, said the proper way to evaluate the ads was to look simply at
what they said. They found that the ads neither endorsed nor opposed Feingold,
did not mention his upcoming election and did not tell listeners whether the
senator had been a part of the filibuster. They agreed with the antiabortion
group's contention that the ads were "textbook" examples of issue ads.
But dissenting District Judge Richard W. Roberts said courts must view the
ads in context. In this case, Wisconsin Right to Life was a longtime opponent of
Feingold and had made his defeat one of its priorities. Although the language in
the ad was neutral, it referred listeners to a Web site that contained highly
critical reviews of the senator.
And Roberts said there could be credence to the defendants' argument that the
ads were a "sham" designed to test McCain-Feingold rather than to argue for a
point of view. There were no filibusters at the time that the group wanted to
run the ads, and the group could have paid for them through a political action
committee, upon which the restrictions would not apply.
Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles,
said the Supreme Court challenge is "going to be a prime opportunity for
opponents of campaign regulations to make some headway in watering down the
He said the decision by the two-member majority of the lower court that
context should not be considered in evaluating the ads is "opposite what the
majority of the Supreme Court found" when upholding McCain-Feingold three years
What could make the outcome different this time, he said, is "simply the
replacement of Justice O'Connor with Justice Alito."
The consolidated case is Federal Election Commission v. Wisconsin Right to
Life (06-969) and McCain v. Wisconsin Right to Life (06-970).