In a 5-4 decision that has emboldened opponents of campaign finance restrictions, the U.S. Supreme Court Monday added wiggle room to a key provision of the landmark 2002 McCain-Feingold campaign finance law.
The decision dealt with a provision of the law preventing corporations or unions from airing certain types of ads in the run-up to Election Day. Though the Court upheld the provision, it narrowed the types of ads to which it could be applied -- and set the stage for a vigorous debate and possibly new federal rules about which ads can air when.
At a minimum, the ruling could pave the way for outside groups to air millions of dollars of hard-hitting ads, naming specific candidates, in the weeks leading up to Election Day 2008. It will also inspire further challenges to the provision as a whole, as well as other parts of McCain-Feingold, which is despised by the political parties because it hinders their ability to raise and spend large sums of money, and by activists at both ends of the political spectrum, who assert it infringes on their free speech.
"This is a step toward restoring the rights of citizens of every political affiliation to vigorously engage in political debate, whether the government agrees with them or not," said Senate Minority Leader Mitch McConnell (R-Ky.), who had filed a brief supporting the Wisconsin anti-abortion group that challenged the provision.
Advocates for limiting the role of money in politics generally bemoaned the decision, though they noted the court left alone the core pillars of McCain-Feingold.
"It did open a significant loophole in the law. However, that inevitably will be exploited by moneyed special interests," said Laura MacCleery, of the nonpartisan group Public Citizen.
The provision in question barred ads paid for by corporations or unions and broadcast on television or radio within 30 days of a primary election or 60 days of a general election, if the ads named federal officeholders or candidates.
Wisconsin Right to Life sued the Federal Election Commission, asserting the rule violated the group's freedom of speech by preventing it from airing ads urging its members to lobby Congress on matters of interest to them.
A three-judge district court panel in Washington sided with the group and the Federal Election Commission appealed to the Supreme Court, making it the first significant federal campaign finance matter to come before the high court since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito.
Roberts and Alito joined Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas in upholding the lower court decision. The three justices also co-authored a concurring opinion urging colleagues to overturn part of the court's 2003 decision that upheld the constitutionality of the provision against a broad challenge by McConnell.
The main opinion, by Roberts and Alito, though, asserted the Wisconsin case was narrower and could not be used to revisit the McConnell ruling.
But Justice David Souter, writing for the four dissenting justices, said Monday's ruling effectively and "unjustifiably" overruled the 2003 decision in the challenge brought by McConnell.
The Wisconsin ads overstepped by naming Sen. Russ Feingold (D-Wis.), wrote Souter, whose opinion was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens.
The Wisconsin Right to Life ads, which began airing before the preelection blackout, implored state voters to call their U.S. senators, Feingold and Herb Kohl, also a Democrat, to urge them to end a Senate filibuster of President Bush's judicial nominees.
Since Wisconsin Right to Life -- like many interest groups -- is incorporated, it had to pull the ads during the blackout period. And it sued the FEC, claiming the blackout violated its members' freedom of speech by preventing them from airing their views while Congress was considering matters of interest to them.
The FEC could commence a rule-making process to define which types of ads would be exempted from the provision, though Chairman Robert Lenhard, a Democratic appointee, wouldn't commit to that.
"We're still looking through the decision and thinking through its implications," he said.
Without a narrow definition, former FEC Chairman Michael Toner said "the court's decision has the potential to open up an important new avenue of interest group advertising in the final weeks before an election."
Toner, a Republican appointee who started an election law practice at Bryan Cave after leaving the commission, said the decision could embolden narrowly defined challenges of other McCain-Feingold provisions, including its ban on soft money contributions to parties.
The ruling "further underscores the hostility of the new Roberts court toward congressional attempts to restrict core political speech," Toner said.
CCP Commentary: The whole thing needs to be gutted or there needs to be a special provision to stop 527's. This is a step in the right direction.