Limitations on Free Speech Challenged:
United States Supreme Court to Hear Campaign Finance Cases
By Liz Townsend

The Supreme Court decided September 27 to hear two important cases dealing with limits on expenditures by candidates and lobbying by citizen groups during elections, which critics assert abridge Americans' free speech rights. The Court will hear the cases, Vermont Republican State Committee v. Sorrell and Wisconsin Right to Life v. Federal Election Commission, in early 2006.
 

James Bopp, Jr., lead counsel for both plaintiffs, told NRL News that the cases deal with fundamental rights. "The laws in question abridge the right of citizens to lobby members of Congress and restrict the ability of candidates to run effective campaigns and fully inform voters of their positions," he said.
 

McCain-Feingold
 

The Wisconsin case concerns the 2002 federal McCain-Feingold law, which was previously upheld by the Supreme Court in a 5-4 decision. The question in this case is "whether or not politicians can shield themselves from being lobbied about upcoming voted in Congress before an election," said Bopp, especially on a grassroots level by a nonprofit group.
 

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. Wisconsin Right to Life (WRTL), considered a corporation under the law, sought to run radio and TV ads urging supporters to contact their U.S. senators, including Wisconsin Senator Russ Feingold, about ongoing filibusters of President Bush's judicial nominees. However, the WRTL ads could not mention Feingold's name in the weeks before the filibuster votes were scheduled to take place, since he was on the ballot in a September 2004 primary election.
 

While the High Court's previous ruling on McCain-Feingold declared it constitutional as a whole, WRTL is now asking whether the specific electioneering communication prohibition can be challenged by certain groups, and whether grassroots lobbying groups like WRTL should be granted an exception to the prohibition.
 

"The Court's decision to accept the case on both issues is very positive," said Bopp, "indicating that the Court is willing to seriously consider whether campaign finance laws can be used to insulate federal candidates from genuine grassroots lobbying about upcoming votes in Congress."
 

The Vermont case stems from a 1997 state law that limits the amounts candidates can spend. Gubernatorial candidates, for example, can only spend a total of $300,000 during a two-year election cycle. In addition, citizens can contribute only $200-$400 to each candidate.
 

"These limits are the lowest in the nation," said Bopp, who also serves as NRLC general counsel. "They are also much less than a competitive campaign spends. It is a direct assault against candidates' rights of free speech, while leaving interest groups and the press free to spend unlimited amounts in elections."
 

The law has never gone into effect, as it has been moving through the courts since it was enacted. In August 2004, the 2nd U.S. Circuit Court of Appeals upheld the law, despite the 1976 U.S. Supreme Court Buckley v. Valeo decision that bans candidate expenditure limits on the grounds that they impose restraints on freedom of speech.

For almost 30 years, courts have followed the Buckley decision and invalidated laws attempting to impose limits on candidates' spending. As recently as 2000, Supreme Court justices cautioned that contribution limits that are too low can prevent effective campaigns and can serve to protect incumbents from challenge, Bopp explained.
 

In the Vermont case, however, the appeals court departed from previous decisions and ruled that the Supreme Court actually "left the door ajar for narrowly tailored spending limits that secure clearly identified" government interests, according to Roll Call. The court found that Vermont's interests in avoiding the appearance of political corruption and limiting the amount of time candidates need to spend on fundraising were enough to make the law constitutional.

Opponents hope the Supreme Court will abide by its earlier decision. "We are extremely pleased that the Supreme Court has agreed to review the Second Circuit's unprecedented decision upholding expenditure limits and their very low contribution limits," said Bopp. "Vermont's law makes candidates bit players in their own elections and thwarts democracy."