Court eyes McCain-Feingold limits on ads

[Ron Burgundy]

AP - Supreme Court justices seem skeptical of a key provision of the landmark campaign finance law, and that could lead to a bigger role for corporations, unions and other interest groups in the 2008 presidential elections.

The provision in question prohibits interest groups from running corporate-funded radio and TV ads that mention a candidate's name within 30 days of a primary or 60 days of a general election.

The case before the court Wednesday involved advertisements that Wisconsin Right to Life, an anti-abortion group, was prevented from broadcasting during the 2004 campaign. The ads asked voters to contact the state's two senators, Democrats Russ Feingold (news, bio, voting record) and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

Feingold was a co-author of the campaign finance law with Sen. John McCain (news, bio, voting record), R-Ariz.

Attorney Seth Waxman, representing a group of lawmakers led by McCain in defense of the provision, told the court that such ads could still be aired as long as they are paid for with money raised under federal limits and disclosure requirements.

"What do you make of the fact that there are so many advocacy groups that say this is really impractical?" asked Justice Samuel Alito. His vote could be pivotal because he replaced Sandra Day O'Connor, one of five justices to uphold large portions of the campaign finance law in 2003.

Chief Justice John Roberts, who also joined the court since the 2003 ruling, asked whether the burden should be "on the challenger to prove that they're allowed to speak, as opposed to the government to prove — to carry the burden that they can censor the speech?"

Should Roberts and Alito vote to overturn the restriction or allow "as-applied" challenges to it, they would likely be joined by three justices who dissented from the 2003 ruling — Antonin Scalia, Clarence Thomas and Anthony Kennedy.

Scalia seemed to invite a fresh look at the law, saying, "Maybe we were wrong last time."

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have said they are exempt from certain limits on contributions in federal elections.

Wisconsin Right to Life won an appeal last year, when a lower court ruled that groups may mention candidates by name in ads as long as they are trying to influence public policy rather than sway elections.

The Bush administration and McCain want the decision reversed.

Solicitor General Paul Clement, representing the administration, argued that the ads were meant to influence the elections, not lobby the senators.

"The fact that by the time they ran these ads Senator Feingold voted 20 times out of 20 to filibuster," Clement said, "suggests to me that they probably concluded that the best way to get a Wisconsin senator who wouldn't filibuster was to change senators, not to change Senator Feingold's mind."

"This is the First Amendment," Scalia said. "We don't make people guess whether their speech is going to be allowed by Big Brother or not."

The lawyer for Wisconsin Right to Life, James Bopp, argued that the ads constituted grassroots lobbying and were therefore exempt from the restrictions. He also said the provision was unconstitutional, but did not make that a central theme of his argument.

Bopp faced tough questioning from justices who had voted to uphold the provision in 2003, with Justice Stephen Breyer quipping that it was "deja vu all over again." He noted that the ads didn't give out Feingold's phone number, but instead directed people to Wisconsin Right to Life's Web site, which criticized the senator.

Justice David Souter took issue with Bopp's contention that people watching or listening to the ads, which criticized a "group of senators" for filibustering the judicial nominee, wouldn't know that Feingold was among then.

"You think they're dumb?" Souter asked.

"No," Bopp responded. The court is expected to rule in the case this summer.

The consolidated case is Federal Election Commission v. Wisconsin Right to Life, 06-969, and McCain v. Wisconsin Right to Life, 06-970.

source: http://news.yahoo.com/s/ap/20070426/ap_on_go_su_co/scotus_campaign_finance [link]