Wisconsin Right to Life Lawsuit Challenges Speech Restrictions

By Liz Townsend

In an important free speech case, Wisconsin Right to Life filed a lawsuit July 28, challenging a federal law passed year that restricts the group's right to run radio and TV ads urging supporters to contact their U.S. senators about ongoing filibusters of President Bush's judicial nominees.

The lawsuit, the first of its kind, was filed against the Federal Election Commission (FEC). The suit stems from the McCain-Feingold "campaign finance reform" bill that was upheld last year by the U.S. Supreme Court. The law bans labor unions and corporations from mentioning a candidate's name in broadcast ads 30 days before a primary and 60 days before a general election.

On December 3, the High Court upheld the broadcast ban against a facial challenge. (A "facial challenge" asks that a law be struck down in its entirety.)

However, the justices left open the possibility "that the broadcast ban would be unconstitutional as applied to certain types of ads," according to Barbara Lyons, executive director of Wisconsin Right to Life (WRL). "Wisconsin Right to Life is the first organization in the country to file suit in federal court claiming that the broadcast ban is unconstitutional as applied - - in this instance, to grassroots lobbying advertisements," she told NRL News.

WRL is currently running radio and television ads encouraging pro-lifers to call Democratic Senators Russ Feingold and Herb Kohl to ask them to oppose the filibusters against President Bush's judicial nominees. These votes are expected to take place in September.

Since Feingold's name will be on the ballot in a September 14 primary election, the law prohibits WRL from using Feingold's name in the television ads after mid-August. In its lawsuit, WRL is asking the U.S. District Court for the District of Columbia to issue an injunction allowing the pro-life group to run these ads during the blackout period.

"The broadcast ban wrongly restricts citizens' ability to learn about and influence an upcoming vote in Congress," Lyons told NRL News. "We want to restore free speech rights within a grassroots lobbying context."

Attorney James Bopp, Jr. filed the suit against the FEC on behalf of WRL. Bopp represented numerous parties as one of the lead counsels in the original case challenging the McCain-Feingold law, McConnell v. FEC, but this will be the first case where an active advertising campaign will be the basis for the suit.

"The McCain-Feingold law drastically reduces the influence of the citizen of average means because the association of like-minded individuals is essential to effective participation in the public arena," Bopp said. "With the little guys locked in the dungeon of nonparticipation, the rich and powerful will run politics, much as they did before the adoption of the first and foremost campaign reform, the First Amendment. The First Amendment protects the right of citizens to influence those in power on the critical issues of the day through grassroots lobbying."

WRL has set up a web site (www.befair.org) to explain the judicial nominee controversy and the lawsuit. The site and the ads give contact information for both senators, encouraging supporters to ask them to allow the 25 judicial nominees before the Senate to be given a "yes" or "no" vote in a timely manner.

"Since March of 2003, a group of senators has used the filibuster approximately 20 times to prevent a 'Yes' or 'No' vote on judicial nominees," according to the befair.org web site. "One nominee, Miguel Estrada, was filibustered seven times and eventually withdrew his name from consideration after waiting two years to be confirmed."

Lyons said that the ads have nothing to do with Feingold's election, but are concerned with stopping the gridlock and unfairness caused by the judicial nominee filibusters. "It's about lobbying, not elections," she said, "about speech, not money."

WRL expects a response from the District Court by mid-August.