This article originally provided by The Washington Post

April 26, 2007

Justices Reconsider Campaign Finance

Some Are Skeptical Of Earlier Ruling

By Robert Barnes
Washington Post Staff Writer

It was clear from the start yesterday just how eager some justices were to revisit the landmark McCain-Feingold campaign finance act that the Supreme Court only four years ago blessed as constitutional.

"Maybe we were wrong last time," Justice Antonin Scalia told Solicitor General Paul D. Clement when Clement advised that the court had already decided the very issue at stake in yesterday's oral arguments.

Scalia was then in the minority of the court. But by the end of yesterday's oral arguments, it seemed that he is part of a majority on the new court headed by Chief Justice John G. Roberts Jr., which appeared skeptical of the way Congress tried to curb the election-year influence of unions, corporations and special interest groups.

It was a lively session, with prevailing justices in 2003's McConnell v. Federal El ection Commission defending the court's precedent. "It's sort of for me deja vu all over again," Justice Stephen G. Breyer said. "We've heard it." Scalia led the charge on the other side, saying the law is unconstitutionally restrictive. "This is the First Amendment," he thundered.

Roberts and Justice Samuel A. Alito Jr., who were not part of that earlier 5 to 4 decision, may be the keys to how the latest challenge fares. Roberts was an especially tough questioner of Clement, whose duty was to defend the portion of the law under attack, although the chief justice seemed uncomfortable with the idea of blatantly disregarding the court's precedent.

Alito was quieter, but his questions were skeptical of the restrictions in the law. "What do you make of the fact that there are so many advocacy groups that say this is really impractical?" he asked Seth Waxman, representing the congressional sponsors.

A decision to overturn the court's previous endorsement of McCain-Feingold or loosen the restrictions surrounding the use of "issue ads" could have a major impact on the 2008 elections, with rival groups ready to spend millions of dollars.

Yesterday's arguments concerned a portion of the law that says corporate entities cannot use money from their general treasuries to broadcast ads that run 30 days before a primary or 60 days before a general election, are aimed at a relevant electorate and mention a federal candidate by name.

The naming restriction was particularly important, because Congress was trying to do away with "sham" issue ads that purported to be about a controversy but amounted to an attack on a candidate. The groups are free to run such ads if a separate political action committee pays for them.

The court in 2003 said the "vast majority" of such issue ads fell into the category of electioneering, and upheld the restriction as constitutional. But last year, the justices ruled that groups could challenge the law based on specific applications.

A group called Wisconsin Right to Life said its ads fit the bill. They mentioned the state's two senators by name and asked viewers to tell them not to filibuster President Bush's judicial nominations. The ads fell within the blackout period because Sen. Russell Feingold (D) -- coincidentally or not, the namesake of the law -- was running for reelection.

A divided appeals court sided with the group, with two judges saying the ads were genuine issue ads; a third said they were part of the group's stated goal of defeating Feingold.

Clement said the ads are not a good test, because they "closely resemble" the kinds of ads that the court specifically said in McConnell were "functionally equivalent to express advocacy."

But James Bopp Jr., arguing for Wisconsin Right to Life, said the law puts groups in an untenable position, because they want to lobby Congress on action that happens to occur during the blackout period.

"And we have in the First Amendment one of the four indispensable freedoms -- your right to petition the government," he said.

Bopp and Justice David H. Souter disagreed about whether the words in the ads could be judged outside of the political context, which is that Wisconsin Right to Life had been highly critical of Feingold's position on the filibuster and had made defeating him the group's priority.

"It is impossible to know what the words mean without knowing the context in which they are spoken," Souter said.

"There's absolutely no evidence that anyone in Wisconsin knew his position on the filibuster," Bopp replied.

"You think they're dumb?" Souter shot back.

Even Justice Anthony M. Kennedy, who was in the McConnell minority with Scalia and Justice Clarence Thomas, said the court looks at context when judging speech.

The decision in McConnell was complicated, and this one could be as well, especially if Roberts and Alito do not want to simply join their three colleagues and upset precedent so early in their tenures. Roberts said during the argument that he is "trying to see if there's a way of approaching this as-applied challenge in a way that doesn't require us to revisit" the prior decision.

The court found such a way recently, in its decision to uphold a federal ban on what opponents call "partial birth" abortion, to reverse course on its abortion holdings without technically upending seemingly contradictory precedents.