High court to hear campaign-law case

Free-speech advocates challenge McCain-Feingold

January 20, 2007|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- The Supreme Court set the stage yesterday for striking down a part of the McCain-Feingold campaign finance law that bars the broadcast of corporate- and union-funded ads just before an election.

Three years ago, the justices narrowly upheld McCain-Feingold and its rule against corporate-funded broadcast ads, which was adopted to prevent powerful interests from using their money to sway elections in the final weeks of a campaign. The now-retired Justice Sandra Day O'Connor cast a deciding fifth vote in favor of the law.

Yesterday, the justices announced that they will hear a free-speech challenge to this rule in April, this time before a court that is likely to be more skeptical of laws that restrict election-related spending.

Advocates of campaign funding laws say they are trying to limit the influence of big money in politics; critics of the measures say they unconstitutionally restrict persons and groups from voicing political views.

The critics include Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. They voted to strike down the McCain-Feingold Act as unconstitutional. If Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. join with them, they will have a majority to limit or strike down the rule against corporate-funded broadcast ads.

That would open the door to even more special-interest ads on radio and television before the primary and general elections in 2008.

For decades, corporations and unions have not been allowed to use their money to fund candidates or their campaigns. However, nothing prevents persons, including corporate and union officers, from giving $2,000 to a candidate for federal office. They may also use their money to join with others to pay for ads that support or oppose a candidate.

The McCain-Feingold Act specifically bans corporate and union-funded ads that mention a candidate for federal office within 30 days of the primary election or within 60 days of the general election.

In upholding this rule in principle, the high court agreed with Congress that these ads are intended to influence an election and, therefore, may be restricted because they amount to use of corporate and union money to sway an election.

But free-speech advocates have been eager to get a new challenge before the high court.

James Bopp Jr., an Indiana lawyer who represents free-speech and anti-abortion causes, brought a test case on behalf of the Wisconsin Right to Life Inc., a nonprofit corporation. He proposed to run radio ads during the summer of 2004 that criticized Democratic Sens. Russ Feingold and Herb Kohl for refusing to approve all of President Bush's pending judicial nominees. Feingold, a co-sponsor of the campaign funding law, was then running for re-election.

The Federal Election Commission said these ads would be illegal. Bopp sued, citing the First Amendment and arguing that the ads amounted to "grass-roots lobbying" of federal office holders, not an election ad.

In December, a three-judge panel in Washington agreed with Bopp and said "genuine issue ads" are protected as free speech.

Supporters of the campaign-funding law, including Arizona Republican Sen. John McCain, fear that the ruling, if upheld, would open a loophole. Though Bopp represents a small, nonprofit group, large corporate interests could broadcast ads that fault candidates for their positions on important issues.

Bopp argues that the restrictions on campaign spending allow lawmakers to shield themselves from criticism.

The justices voted to hear two appeals: FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life. The cases will be decided by late June.

David G. Savage writes for the Los Angeles Times.

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