U.S. Supreme Court hears oral arguments in case over Wisconsin antiabortion group's appeal of campaign finance law

Apr 30 2007

The U.S. Supreme Court on Wednesday heard oral arguments in a challenge of a lower court ruling in favor of a Wisconsin anti-abortion group's constitutional challenge to the McCain-Feingold federal campaign finance law, the New York Times reports (Greenhouse, New York Times, 4/26).

Wisconsin Right to Life in its lawsuit challenging McCain-Feingold was seeking permission to run television and radio advertisements within 30 days of a 2004 primary that mentioned Sen. Russell Feingold's (D-Wis.) name and focused on his opposition to several of President Bush's judicial nominees. The group claims that the campaign finance law's provisions that prohibit the use of interest groups' "issue ads" during the weeks preceding an election are unconstitutional. A three-judge panel of the U.S. District Court for the District of Columbia in August 2004 unanimously rejected WRTL's challenge to the provisions in the law. WRTL appealed the ruling to the Supreme Court. The Supreme Court in January 2006 said that when it had upheld the law's provision concerning "electioneering communications" against a "facial challenge" in 2003, it did "not purport to resolve future as-applied challenges." The justices ordered the district court "to consider the merits of WRTL's" challenge. A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia in December 2006 overturned provisions of the law that restrict issue ads during the weeks before federal elections. The Federal Election Commission and a group of lawmakers led by Sen. John McCain (R-Ariz.) are arguing for the provisions to be upheld, the AP/Forbes reports (Frommer, AP/Forbes , 4/25). The justices are scheduled to issue a ruling before the end of June, the Miami Herald reports (Doyle, Miami Herald , 4/26).

Hearing Comments
Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy have said the law should be struck down on free-speech grounds. According to the Los Angeles Times, Chief Justice John Roberts and Justice Samuel Alito also are "likely" to overturn the provisions, but Roberts said he is not convinced the law should be struck down entirely. He asked how advocacy groups could be exempted from the law so they could sponsor ads that focus on issues, not candidates (Savage, Los Angeles Times , 4/26). The District of Columbia circuit court panel ruled that WRTL ads were not campaign ads but general issue ads and that the government did not demonstrate a compelling enough argument to impose restrictions on groups' free-speech rights. The decision also said that the portion of the McCain-Feingold law banning issue ads paid for by corporate or union money is unconstitutional because it imposes campaign finance restrictions on groups that are using ads to advance legislative policy (Kaiser Daily Women's Health Policy Report, 1/22). James Bopp, an attorney who represents WRTL, said that at a minimum the Supreme Court should permit ads that focus on issues that were pending before Congress ( Los Angeles Times , 4/26).

Outlook
According to the New York Times , some election law experts believe the fate of the statute depends on how broad an exception the court "carves out" through its decision on this or future "as-applied" challenges to the law. Justice Stephen Bryer told Bopp that if "we agree with you in this case, good-bye McCain-Feingold" ( New York Times , 4/26). Nathaniel Persily, a law professor at the University of Pennsylvania, said that the campaign finance law, along with so-called "partial-birth" abortion laws, were the two precedents "most likely to be reversed" by the Supreme Court "in the short term" (Richey, Christian Science Monitor, 4/25).