June 25, 2007
By Robert Barnes
Washington Post
The Supreme Court today substantially weakened the McCain-Feingold campaign finance act's restrictions on the kinds of ads corporations, unions and special interest groups may run in the days before an election.
Chief Justice John G. Roberts Jr. wrote the 5-4 opinion for the court, saying that the act's prohibition against groups naming federal candidates in ads broadcast before an election was unconstitutional in some cases. But he and Justice Samuel A. Alito Jr. did not go as far as other conservatives wanted to rule the restrictions in the act were always unconstitutional.
The difference between so-called "issue ads," which are allowed, and those that "express advocacy," which are banned, is often hard to define, Robert said.
"In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it," Roberts wrote.
The decision to 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.
The portion of the law in question 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.
Justice David H. Souter wrote today's dissent for the liberal members of the court who were in the majority in 2003, taking what has been the increasingly common tactic of reading his dissent from the bench to signal his displeasure with the changing court.
"The court (and, I think, the country), loses when important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here," he said, referring to the court's rule of following past judgments.
He said that while the court upheld prohibition against express advocacy ads in theory, it will be meaningless in practice.
"After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear," Souter wrote.
The case at hand involves a group called Wisconsin Right to Life, which was restricted from running ads in 2004 that urged listeners to call the state's two senators and tell them not to filibuster President Bush's judicial nominees. One of the senators -- coincidentally, Sen. Russell Feingold (D), one of the sponsors of the law -- was up for reelection at the time, and had been targeted for defeat by the anti-abortion group.
The combined cases are FEC v. Wisconsin Right to Life, and McCain et al v Wisconsin Right to Life.
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