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Supreme Court Hears Challenge to Campaign Law; Wisconsinites Play Pivotal Roles in Case

Posted on: Wednesday, 18 January 2006, 15:00 CST

By CRAIG GILBERT

Washington Two years after narrowly upholding the McCain- Feingold campaign reforms, the U.S. Supreme Court revisited the subject Tuesday, hearing a legal challenge by the anti-abortion group Wisconsin Right to Life.

The result was a very lively hour in which justices returned to what was a central issue in the court's landmark ruling of December 2003: how to balance the regulation of election ads with the free- speech rights contained in the First Amendment.

Depending on where the court comes down, the case could leave the recent reforms intact or could significantly narrow the way they are applied.

One key to that outcome is the new chief justice, John Roberts, who appeared in Tuesday's arguments to have serious concerns about the current law's potential impact on freedom of speech.

The case before the court Tuesday had a distinct Wisconsin flavor.

It pitted perhaps the state's leading anti-abortion group against a campaign law co-authored by Wisconsin Sen. Russ Feingold. It involved the regulation of TV ads aired by the group last year, targeting Feingold and his fellow Wisconsin Democrat, Sen. Herb Kohl. And arguing against Wisconsin Right to Life on behalf of the government was Solicitor General Paul Clement, who grew up in Cedarburg.

At issue is one of the campaign law's main pillars restrictions on election-time ads aired by advocacy groups. Under the 2002 law, any radio or TV spot that names a federal candidate and is broadcast within 30 days of a primary or 60 days of a general election is subject to the sort of regulations disclosure rules and funding limits that apply to campaign ads.

Wisconsin Right to Life mapped out a deliberate challenge to the law when it aired its ads last summer naming Kohl and Feingold. The ads fell under the law's definition of "electioneering" because Feingold was up for re-election.

The anti-abortion group argued Tuesday that the ads weren't electioneering but "grass-roots lobbying." The spots asked Wisconsin viewers to call Kohl and Feingold and urge them to oppose efforts to block President Bush's judicial nominees. As part of a lobbying campaign, the ads shouldn't be subject to restrictions aimed at election ads, Wisconsin Right to Life argued.

The group lost its case before a three-judge federal panel in Washington, then appealed to the Supreme Court.

The practical effect of the law on the organization was that it couldn't use corporate funds to air the ads. The group would have had to air them instead through its political action committee, whose funds are subject to contribution limits and disclosure rules.

Wisconsin Right to Life attorney James Bopp Jr. told the court Tuesday that it was wrong to subject lobbying efforts efforts to influence public opinion and elected officials to campaign restrictions. To do so, he argued, would "immunize incumbents from being lobbied" at election time.

Justices' questions hint at split

Bopp was sharply questioned by several of the justices who voted in 2003 to uphold the McCain-Feingold reforms, titled the Bipartisan Campaign Reform Act.

Those justices said the court confronted a similar dilemma in its 2003 ruling: how to draw a line between "issue advocacy," which can't be restricted, and election ads, which can.

In that case, the court accepted the approach contained in the law, which in the pursuit of clarity drew a bright line based on the timing of an ad and whether it contained a reference to a federal candidate.

Justices David Souter and Stephen Breyer suggested that Bopp was asking the court to re-hear the McCain-Feingold case, officially known as McConnell vs. FEC.

"You have a very good argument, but it's an argument we heard right in that case," Breyer told Bopp. "Are you asking us to go back and . . . undo much of what we did?"

But Justices Antonin Scalia and Anthony Kennedy, who both voiced objections to the McCain-Feingold law in 2003, were far more sympathetic to the group's case. And they were joined by Roberts, who wasn't on the court at the time of the 2003 ruling.

All three questioned Solicitor General Clement sharply. Kennedy suggested it was an "odd conclusion" to restrict lobbying ads at election time, when lawmakers are most liable to be influenced by an issue ad. At one point, Kennedy spoke dismissively of "how far we've gone down this road" of regulating political speech.

"You're dealing with a very, very fundamental guarantee," Scalia said of the First Amendment.

Clement, who had successfully argued for the government in 2003 that the ad restrictions should be upheld, suggested that Wisconsin Right to Life's ads were meant at least in part to influence Feingold's re-election, saying the group was "genuinely interested in sending Sen. Feingold packing."

Clement also acknowledged that it was very difficult to objectively distinguish between issue advocacy and ads intended to influence an election, especially when some ads mix both purposes. Clement said the law's approach was a reasonable way to draw that line and didn't prevent any group from running election-time ads without using corporate or union money.

Justice Sandra Day O'Connor participated in the arguments but would not be around to help decide the case if nominee Samuel Alito is confirmed later this month. That might leave the court deadlocked 4-4 on the case, assuming Roberts sides with Wisconsin Right to Life.

Respect for precedent'

Feingold, who voted last year to confirm Roberts, issued a statement Tuesday suggesting that the respect Roberts and Alito have expressed in their Senate confirmation hearings for court precedents should compel them to rule against Wisconsin Right to Life.

"We have heard a great deal over the past several months about judicial modesty and respect for precedent. The Supreme Court's decision in the case argued today will show whether those principles have meaning or are just empty rhetoric," Feingold said. "The court cannot uphold the challenge brought by Wisconsin Right to Life without ignoring the precedent it set when it upheld the issue ad provisions of the Bipartisan Campaign Reform Act two years ago."

Barbara Lyons, executive director of Wisconsin Right to Life, who sat in the court chamber Tuesday, said the case was about the right to lobby one's elected officials freely.

"It's difficult to know how they're going to decide," she said of the court.

Left-right constellation

Tuesday's case reunited a left-right constellation of groups opposed to many of the law's restrictions.

Groups filing briefs in support of Wisconsin Right to Life include the AFL-CIO, the U.S. Chamber of Commerce and the Alliance for Justice, a coalition active in the fight against President Bush's Supreme Court nominees.

AFL-CIO lawyer Lawrence Gold said after the arguments that the legal challenge was "not an attempt to retry the (2003) case, but if the court wants to re-examine its basic rationale in McConnell, I would certainly welcome it."

Copyright 2006, Journal Sentinel Inc. All rights reserved. (Note: This notice does not apply to those news items already copyrighted and received through wire services or other media.)

Source: Milwaukee Journal Sentinel

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