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Saturday, January 20, 2007

Law - "High court to review campaign finance law"

David Savage of the LA Times wrties today:

WASHINGTON — The Supreme Court set the stage Friday for striking down a part of the McCain-Feingold campaign finance law that bars the broadcast of corporate and union-funded ads just prior to an election.

Three years ago, the justices narrowly upheld the McCain-Feingold Act of 2002 and its rule against corporate-funded broadcast ads, which was adopted to prevent powerful interests from using their money to sway elections in the final weeks of a campaign. The now-retired Justice Sandra Day O'Connor cast a deciding vote in favor of the law.

On Friday, the justices announced they would hear a free-speech challenge to the rule in April, this time before a court that is likely to be more skeptical of laws that restrict election-related spending.

Although advocates of campaign funding laws say they are trying to limit the influence of big money in politics, critics say the measures unconstitutionally restrict people and groups from voicing their political views.

The critics include Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. They voted to strike down the McCain-Feingold Act as unconstitutional. If Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. join them, they will have a majority to limit or strike the rule against corporate-funded broadcast ads.

That would open the door to more special interest ads on radio and TV prior to the 2008 primary and general elections. * * *

James Bopp Jr., an Indiana lawyer who represents free-speech and anti-abortion causes, brought a test case on behalf of the nonprofit Wisconsin Right to Life Inc. He proposed to run radio ads during the summer of 2004 that criticized Democratic Sens. Russell D. Feingold and Herb Kohl, both of Wisconsin, for refusing to approve all of President Bush's pending judicial nominees. Feingold, a co-sponsor of the campaign funding law, was then seeking reelection.

The Federal Election Commission said these ads would be illegal. Bopp sued, citing the 1st Amendment and arguing these ads amounted to "grassroots lobbying" of a federal office holders, not an election ad. In December, a three-judge panel in Washington agreed with Bopp and said "genuine issue ads" are protected as free speech.

Supporters of the campaign-funding law, including Sen. John McCain (R-Ariz.), fear that if the ruling is upheld, it would open a large loophole. Though Bopp represents a small, nonprofit group, large corporate interests could broadcast ads that fault candidates for their positions on important issues.

Bopp argues that the restrictions on campaign spending allow lawmakers to shield themselves from criticism. "Politicians should not be able to use campaign finance laws, like McCain-Feingold, to prohibit citizen groups from engaging in grass roots lobbying," he said Friday.

The justices voted to hear two appeals raising the same basic issue. They are Federal Elections Commission vs. Wisconsin Right to Life and McCain vs. Wisconsin Right to Life. The cases will be decided by late June.

Other papers covering this story today include the Washington Post, which reports:
At issue in the case is the question of whether so-called issue advocacy ads paid for by the general funds of special interest groups and broadcast in the period before a federal election may mention specific candidates. A three-judge panel in Washington last month overturned that prohibition, which is one of the key provisions of the law known formally as the Bipartisan Campaign Reform Act.

"The stakes are enormous," said Michael E. Toner, a Federal Election Commission member who served on President Bush's campaign in 2000. "We're watching this case very closely."

The specific rule against naming a candidate -- 30 days before a primary and 60 days before a general election -- is one of the bright lines in the act governing the role special interest groups may play in the election and, to its supporters, one of the act's virtues.

"One of the advantages of McCain-Feingold is that it's clear," said Trevor Potter, an adviser to Sen. John McCain (R-Ariz.), the law's namesake, and president of the Campaign Legal Center.

If the justices uphold the lower-court ruling, Potter predicts additional disputes in the courts and at the FEC about when an independent group's commercial would be considered legitimate issue advocacy, and when it would be considered an attempt to influence the outcome of an election.

"You will have endless challenges to see where the line should be," he said.

But James Bopp Jr., the Indiana attorney and Republican National Committee member who brought the case on behalf of Wisconsin Right to Life, said the current prohibition cracks down on groups that are merely intending to influence lawmakers in the manner encouraged by the First Amendment.

The right to petition the government, Bopp said, should not be limited simply because it makes campaign finance laws too complicated.

"The court is perfectly capable of drawing a sensible and reasonable line between grass-roots lobbying and influencing an election," Bopp said.

and the NY Times. Here is Linda Greenhouse's story. Check the Election Law Blog for added coverage and links.

Posted by Marcia Oddi on January 20, 2007 09:51 AM
Posted to General Law Related