THE WASHINGTON TIMES The Supreme Court yesterday ruled that the First Amendment protects the rights of businesses and unions to fund advocacy ads in the closing months of an election, striking a blow to campaign-finance law and drawing praise from free-speech activists.
The court’s 5-4 decision upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads mentioning candidates within 30 days of the 2004 elections, despite restrictions imposed by the 2002 McCain-Feingold campaign-finance act.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Chief Justice John G. Roberts Jr. wrote for the majority. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas joined the majority.
Justice David H. Souter wrote the minority opinion and was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens.
“There’s no doubt it’s a win for grass-roots lobby groups, and it’s also a win for First Amendment libertarians in general,” said Mark Moller, a senior fellow at the Cato Institute, which filed a court brief on behalf of the plaintiff, Wisconsin Right to Life.
Wisconsin Right to Life had planned to run radio ads a month before the September 2004 Wisconsin primary asking voters to contact Democratic Sens. Russ Feingold and Herb Kohl and urge them not to filibuster President Bush’s judicial nominees.
But the group shelved the ads when it realized the McCain-Feingold bill prohibited advocacy groups from spending their treasury money on ads that mention federal candidates 30 days before a primary or 60 days before a general election.
“Today, the U.S. Supreme Court restored the right of citizens and citizen organizations to engage in grass-roots lobbying through the use of broadcast communications,” said Barbara Lyons, executive director of Wisconsin Right to Life.
The Bush administration urged the court to ban the ads, arguing that they were meant to influence the elections, not lobby the senators.
Justice Souter said the ads could have been run had they been paid for out of the group’s political action committee, which is subject to federal campaign-finance limits. Or if Mr. Feingold’s name could have been omitted, he said.
“Thus, what is called a ’ban’ on speech is a limit on the financing of electioneering broadcasts by entities that … insist on acting as conduits from the campaign war chests of business corporations,” Justice Souter said.
Mr. Feingold, who co-authored the law with Sen. John McCain, Arizona Republican, said the court’s decision was disappointing.
“The [Federal Elections Commission] should not allow today’s decision to open the door for a return to the pre-McCain-Feingold days of phony issue ads and unlimited corporate and union spending on campaigns,” Mr. Feingold said. “If that is the result, the court will have done the country a great disservice.”
But both senators said the ruling will not affect the principal provision in the McCain-Feingold law that bans federal officeholders from soliciting soft-money contributions for their parties to spend on their campaigns.
“Fortunately, that central reform still stands as the law,” Mr. McCain said.
A divergent list of interest groups supported the court’s decision, including the American Civil Liberties Union, the National Rifle Association, the U.S. Chamber of Commerce and labor unions.
“A majority of the [Supreme] Court has finally and emphatically embraced the simple truth that the First Amendment abides no law that suppresses independent speech about legislators and candidates, at least absent an explicit call for their election or defeat,” AFL-CIO union President John J. Sweeney said.
The AFL-CIO filed a brief supporting the challenge in the case.
Many Republican leaders also supported the ruling.
“Prior to this ruling, citizens were allowed to speak their minds except for just before an election [but] this ruling corrects that obstacle to free speech,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
“This decision is a victory for free speech and confirmation that grass-roots advocacy organizations have the same free speech rights as all Americans.”
The court’s majority was divided in how far justices were willing to go in allowing issue ads.
Justices Kennedy, Scalia and Thomas would have overruled the court’s 2003 decision upholding the constitutionality of the provision.
Chief Justice Roberts and Justice Alito said only that the Wisconsin group’s ads are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.
That means the FEC will likely have to step in and write specific rules about such advertising that reflect the court’s opinion.
“Because their is no ’bright line’ here, there certainly is room for more litigation on the issue,” said Mr. Moller of the Cato Institute. “But this decision definitely puts the FEC on the defensive.”
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