NRL News
Page 7
May 2007
Volume 34
Issue 5

Supreme Court Hears Challenge to Key McCain-Feingold Provision
BY Dave Andrusko

When the Supreme Court heard oral arguments in Federal Election Commission v. Wisconsin Right to Life, and Sen. John McCain, et al., v. Wisconsin Right to Life, it was clear that a number of justices were highly doubtful of a key provision of the 2002 McCain-Feingold campaign finance “reform” law while others were equally adamant it had to be upheld.

The free speech–stifling provision at issue says that in the 60 days prior to a general election or 30 days prior to a primary, citizen advocacy groups such as Wisconsin RTL (WRTL) cannot sponsor radio and TV ads that even mention a candidate for federal office, including current office holders,

In December 2003, the High Court in McConnell v. FEC upheld the core of the “Bipartisan Campaign Reform Act of 2002” (the McCain-Feingold law) in a split 5–4 decision. But WRTL challenged a portion of the law that dealt with “electioneering communications”—the term McCain-Feingold applies to broadcast ads that refer by name to a federal candidate within 30 days before a primary election or 60 days before a general election.

In 2004, WRTL wanted to broadcast TV ads during these “blackout periods.” The ads simply said that some senators in Washington were “using the filibuster tactic” to prevent an up or down vote on a number of President Bush’s judicial nominees. “Contact [Wisconsin] Sens. [Russell D.] Feingold and [Herb] Kohl and tell them to oppose the filibuster,” the ad said. One of those senators—Russ Feingold (D)—was running for re-election.

WRTL believed the ads to be an example of motivating grassroots citizens to communicate with their elected representatives and of an activity highly protected by the First Amendment.  However, rather than risk criminal prosecution, WRTL filed an as-applied [case by case] suit and sought a preliminary injunction to permit continued running of its ads. Over the next two and a half years a lengthy series of cases ensued, culminating with the Supreme Court hearing the two cases April 25.

Two justices were not on the Court in 2003: Chief Justice John Roberts and Justice Samuel Alito. According to press accounts, both were skeptical of the provision of McCain-Feingold.

Writing on the scotusblog.com, Lyle Denniston concluded that the main thrust of the criticism against the electioneering communications restrictions was that they “do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates.”

 James Bopp, Jr. represents WRTL. Bopp and WRTL have had success fighting the provision in the lower courts. For example, a special three-judge Federal District Court ruled that WRTL’s proposed ads were “genuine issue ads”—the text and images did not show that they were “intended to influence the voters’ decisions”—and thus the government could not keep them off the air.

In its opinion, the panel concluded that WRTL’s as-applied challenge boiled down to the assertions that its ads were not “express advocacy” (or its “functional equivalent”) and that the government “has failed to demonstrate a compelling interest in regulating these ads.” The panel said, “we agreed with each of the plaintiff’s contentions.”

The panel wrote that the defendant—the FEC—had argued that an evaluation “should not be limited to a facial evaluation of the ad’s language, but a contextual analysis of the ‘intent’ behind the ad’s creation and the ‘effect’ that the ad is intended, and likely, to have on the voting public.”

Continuing, the panel concluded, “Simply stated, it appears to this Court that the judiciary, in conducting First Amendment analysis, should not be in the business of trying to read any speaker’s mind.” The panel warned, “Such an inquiry is unprecedented and not properly a part of any First Amendment analysis.”

Judges, the district court said, should restrict themselves to examining the “four corners” of the ad itself. The question was whether its language expressly advocates the election or defeat of a federal candidate. If it doesn’t, it passes muster as a genuine issue ad.

The Supreme Court Justices who aggressively challenged Bopp insisted this is too narrow a test, echoing the position taken by the FEC. “It is impossible to know what the words mean without knowing the context in which they are spoken,” Justice Souter said.

Bopp disagreed. “The only test is, “What do the words say?” How else, Bopp asked, could an ad’s validity be “reasonably ascertainable” in advance and not depend “upon the varied understandings of the listener”

In an essay published just prior to the oral arguments, Bopp argued that what was at issue was the “perennial impulse among governing powers to make political dissent illegal.”

The First Amendment, Bopp wrote, “was to ensure the people’s participation in their own government by protecting the ‘four indispensable democratic freedoms’ of speech, press, assembly, and petitioning the government. Thus, the First Amendment was intended to deprive the government of the power to silence criticism of official actions.”