WASHINGTON (BP)–The U.S. Supreme Court heard oral arguments April 25 in a challenge to a section of a campaign finance reform law that pro-life and other advocacy organizations have criticized as a violation of free speech.
The hour-long arguments, which were particularly combative even for the high court, found a restriction on pre-election advertising at the center of the debate. The justices considered what issue ads broadcast prior to federal elections are permitted under the 2002 Bipartisan Campaign Reform Act, commonly referred to as McCain-Feingold. The chief Senate sponsors of the law were Sens. John McCain, R.-Ariz., and Russell Feingold, D.-Wis.
The Supreme Court is expected to issue a decision before it adjourns in late June or early July.
The case reached the high court after a special three-judge panel in the District of Columbia ruled in a 2-1 December decision in favor of Wisconsin Right to Life (WRTL), which had paid for ads asking citizens to urge the state’s U.S. senators, Feingold and Herb Kohl, to oppose filibusters of President Bush’s judicial nominees. The Federal Election Commission appealed the ruling and was supported by McCain and other members of Congress.
The high court had upheld McCain-Feingold in a 2003 opinion, but it ruled in 2006 an “as-applied” challenge to the “electioneering communication” provision could be considered. The justices sent the case to the D.C. panel for a ruling.
That section of McCain-Feingold bars labor unions and corporations from including a candidate’s name in ads 30 days before a primary election and 60 days before a general election. The provision also has been applied to non-profit advocacy organizations, such as WRTL.
WRTL’s ads, which first ran in 2004, did not mention the election and did not refer to either senator’s position on filibusters or his previous votes on judicial nominees. Feingold was up for re-election that year.
The ads were pulled after three weeks on radio and two weeks on television, according to the group’s lawyer, James Bopp, when the 30-day deadline before the primary was reached, and WRTL sued the FEC as a result.
Bopp called for the court to affirm what he contended it had said in its 2003 McConnell v. FEC opinion, that exceptions are allowed under the ban for ads that legitimately deal with legislative issues — rather than elections — during the blackout periods.
In the face of strong challenges from Associate Justices Stephen Breyer and David Souter, Bopp said he was calling for an exception for such ads but acknowledged he would urge a reversal of the McConnell ruling if there is “no workable test.”
“Our first step is we want to give meaning to the promise of McConnell that there were genuine issue ads that could be protected …,” he said.
“If there is no workable test that is reasonably ascertainable by small, grassroots organizations that separates genuine issue ads from sham issue ads — [the Supreme Court has] said you cannot throw out the protected speech in order to target unprotected speech. And the line of argumentation that the government is presenting simply ignores the fact that at least we have a dilemma, we have Congress in session during the blackout periods, voting on items. And we have in the First Amendment one of the four indispensable freedoms, your right to petition the government.”
Associate Justice John Paul Stevens questioned if the purpose of the ads was to change Feingold’s position on filibusters. When Bopp said that was the reason for the ads, Stevens asked if that were a “realistic goal.”
“Yes, as it turns out, because in 2006 we ran the same sort of anti-filibuster ads, and Senator Kohl, now up for re-election, changed his position on the filibuster,” Bopp answered. “So these things happen. In other words, … people’s positions are affected by grassroots lobbying, and at least people should have the opportunity to engage in grassroots lobbying.”
Associate Justice Anthony Kennedy replied wryly, “Is that called democracy?”
Solicitor General Paul Clement, arguing for the FEC, and Seth Waxman, representing McCain, underwent skeptical questioning from Chief Justice John Roberts and Associate Justice Antonin Scalia.
Clement told the court the issue of judicial filibusters “isn’t something that came like a bolt out of the blue on the eve of the election. These ads were run some 500 days after the first filibuster vote.”
Scalia took issue with Clement’s argument at one point, telling him, “This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line. Not whether … I had ads against Feingold in the past or whether Feingold voted 20 times against this [or] half of the time against this.”
Associate Justice Samuel Alito asked Clement how long the blackout period would be during the 2008 presidential campaign. Clement said “in various places” it would be 30 days before the primary and 60 days before the general election.
Scalia interjected, “It could be as long as 200 days; isn’t that correct?”
Clement replied, “Not in any one place,” but the question of the law’s effect on national advertising in a presidential election had been raised.
Afterward, Bopp told Baptist Press it was the “most intense argument that I’ve had” before the Supreme Court. It was Bopp’s fifth time to participate in oral arguments.
Ever since McCain-Feingold was approved, pro-life and pro-family organizations — such as the Southern Baptist Ethics & Religious Liberty Commission -– have warned about its threat to freedom of speech.
A cross-section of organizations filed friend-of-the-court briefs in support of WRTL, including the American Center for Law and Justice, ACLU, AFL-CIO, Chamber of Commerce, Coalition of Public Charities, Family Research Council, National Association of Realtors and National Rifle Association.
Two cases -– FEC v. WRTL and McCain v. WRTL –- were consolidated for the arguments.
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A transcript of the oral arguments is available at www.supremecourtus.gov.
