WASHINGTON -- During the 1990s, television viewers knew an election was approaching when ads urged them to call Candidate X and tell him Y. In 1996, for example, Montana viewers were told: "Call Bill Yellowtail and tell him to support family values."
This was the tag line for an ad that said Yellowtail, an environmentalist and a Democratic candidate for Congress, had taken "a swing at his wife," failed to pay child support and had been convicted of a felony.
It was no surprise to anyone that Yellowtail lost the election. But it might surprise many to know that the ad was not governed by federal election laws. Because viewers were not told to vote against him, the spot was deemed an "issue ad," not a campaign ad. And that meant it could be paid for secretly by corporations and unions.
Last year, Congress passed a campaign reform law designed, among other provisions, to change that.
And today, in a special summer session, the Supreme Court will hear a major challenge to the Bipartisan Campaign Reform Act -- better known as the McCain-Feingold law, after key sponsors Sens. John McCain, an Arizona Republican, and Russell D. Feingold, a Wisconsin Democrat.
Most notably, the law prohibits the large contributions known as "soft money" to political party organizations. But some legal experts believe that the court battle will focus on whether the government can regulate campaign ads such as the one that helped keep Yellowtail out of Congress.
Roy Schotland, a Georgetown University law professor and expert on campaign funding laws, predicts the high court will uphold the soft money ban and other contribution limits, but says the dispute over regulating election ads is too close to call.
The First Amendment guarantees free speech, and challengers say the court should be especially wary of laws that restrict political ads.
Defenders of the law say Congress merely closed an obvious loophole when it expanded the definition of an election ad.
Before last year, television and radio spots could escape federal election laws if they did not say "Vote for Smith" or "Defeat Jones." This was known as the "express advocacy" rule.
The new law forbids the use of all corporate, union and individual contributions beyond certain limits to pay for "electioneering communications." These are defined as broadcast ads that refer "to a clearly identified candidate for federal office" within 60 days of a general election or 30 days of a primary election. (The law governs only federal election activity and does not directly affect state races.)
Washington lawyer Seth Waxman, U.S. solicitor general during the Clinton administration, argues that the act "bans no speech. It only restricts the source of funds used for those ads and requires disclosure in certain circumstances."
"Anybody who is honest and looks at those ads knew they were campaign ads," said Larry Noble, former general counsel for the Federal Election Commission.
The Los Angeles Times is a Tribune Publishing newspaper.
