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Supreme Court Hears Arguments on Restricting Campaign Ads

April 25, 2007 at 12:00 AM EDT
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GWEN IFILL: Today’s Supreme Court arguments represent the third challenge in four years to the landmark 2002 McCain-Feingold campaign reform law. This time, justices are being asked to decide whether the law limits constitutional free speech rights by banning targeted campaign advertising within 60 days of a federal election.

In this case, the Bush administration is appealing a lower court ruling. That found that the constitutional rights of the anti-abortion advocacy group Wisconsin Right to Life were violated when its 2004 ads castigating senators over judicial nominations were pulled off the air.

AD ANNOUNCER: … because a group of U.S. senators is filibustering, blocking qualified nominees from a simple “yes” or “no” vote. It’s politics at work, and it’s causing gridlock. Contact Senators Feingold and Kohl and tell them…

GWEN IFILL: It was that direct reference to Democratic Senator Russ Feingold that got the ad pulled off the air. Feingold was running for reelection in 2004, and the Federal Election Commission determined the ads to be “electioneering communications.”

The McCain-Feingold law defines “electioneering communication” as an ad that “clearly identifies a candidate for federal office; is publicly distributed shortly before an election for the office that candidate is seeking; and is targeted to the relevant electorate.”

The law also forbids labor unions and corporations from paying for such advertising, a restriction groups ranging from the AFL-CIO to the National Rifle Association oppose.

Targeting a specific provision

Marcia Coyle
The National Law Journal
The primary question for both sides is very simple: How do you tell the difference between a genuine issue ad and what is called a sham issue ad, one that's a thinly veiled attempt to influence an election?

GWEN IFILL: NewsHour regular Marcia Coyle of the National Law Journal was at the court for today's arguments, and she brings us more now.

Marcia, welcome back. How is this different from the big 2003 effort to overturn the entire McCain-Feingold law?

MARCIA COYLE, National Law Journal: This challenge is targeted at a specific provision of the law. A year ago, the Supreme Court had a case, again Wisconsin Right to Life, in which the court said, in 2003, when we upheld the constitutionality of the law, we didn't mean to close the door on claims by a group that they may have genuine issue ads that, if this black-out ban is applied, would violate that group's First Amendment rights.

Wisconsin Right to Life went back with that ruling and got a ruling that applying it to these ads did violate its rights. The government now appeals that to the Supreme Court.

GWEN IFILL: So take us inside the courtroom. This argument between what was an issue ad and what was not an issue ad turned out to be the central debate.

MARCIA COYLE: It did. In fact, the primary question for both sides is very simple: How do you tell the difference between a genuine issue ad and what is called a sham issue ad, one that's a thinly veiled attempt to influence an election?

Solicitor General Paul Clement and a private attorney, Seth Waxman, who is representing Senator McCain and others supporting this black-out ban, argued that the Wisconsin Right to Life ads are no different from the vast majority of electioneering ads that the court has found are attempts to influence an election.

And he said the test, Solicitor General Clement said, the test is, look at the ad and the context of the ad. These ads didn't give voters contact information for Senator Feingold. It gave them, for example, Wisconsin Right to Life's Web site. And when you went to that Web site, you found information critical of Senator Feingold, information about his voting record.

Also, this is about filibustering in the Senate. That was an issue that was alive long before the election, but this ad, like electioneering ads, are targeted close to an election. Justice Scalia, who would have struck down the law back in 2003, said, "Wait a minute. This is the First Amendment. People shouldn't have to guess when their speech rights are violated. We need a clear, bright line rule. You've given us a fuzzy rule."

Corporations may be circumventing

Marcia Coyle
The National Law Journal
What Congress was concerned about here was that corporations, primarily, have found a way to circumvent restrictions on financing campaigns by running these sham issue ads.

GWEN IFILL: And this is also about who's paying for these ads, whether corporate and labor unions actually are paying for these ads, which makes them more likely to be issue ads?

MARCIA COYLE: Yes...

GWEN IFILL: According to the law.

MARCIA COYLE: Right, right, exactly. What Congress was concerned about here was that corporations, primarily, have found a way to circumvent restrictions on financing campaigns by running these sham issue ads. So that's what Congress was trying to get at.

When Justice Scalia called the government's test fuzzy, the argument went to Mr. James Bopp, who is representing Wisconsin Right to Life. And his test was you look at the words of the ad. The test is what the words say.

Justice Souter, who upheld the constitutionality of the act in 2003, said, no, the test is, what do the words mean? And you don't know what the words mean unless you understand the context.

GWEN IFILL: As with every other case we're looking at this term, it seems that we are watching to see what Chief Justice Roberts does and what Justice Alito does, because they are the new players that are different from 2003. How did they contribute today?

MARCIA COYLE: Well, Justice Alito, I would say, did not tip his hand either way. Chief Justice Roberts seemed somewhat sympathetic.

GWEN IFILL: To?

MARCIA COYLE: To Wisconsin Right to Life's arguments and concerns. Last week, if you remember, we talked about the 5-4 decision in the Supreme Court upholding the federal partial-birth abortion ban law. Abortion was one area that everyone was predicting we could see a change with the change in composition in the court, primarily because of Justice O'Connor.

And one justice made a difference last week in the abortion area, and that was Justice Alito. He took a position different from what Justice O'Connor had done in that area. Campaign finance is another area where you could see the court have a change in direction because of the loss of Justice O'Connor. So Justice Alito may well make a difference here.

Effect on the 2008 elections

Marcia Coyle
The National Law Journal
We're going to see in the 2008 elections massive broadcast ads by corporations and other groups that are intended to influence the elections and circumvent the very old restrictions.

GWEN IFILL: And if a justice does make a difference, if there is a change in direction, will this have an immediate effect that is applicable to the 2008 elections? Or did that not play a role really in the debate today?

MARCIA COYLE: It does play a role. It didn't figure largely, but very much in the back of the minds of both the government and groups like Wisconsin Right to Life are the 2008 elections. The court expedited hearing this case because these groups want to know what the answer is. What is the test, so that they know whether their ads can get on the air?

The government feels, believes that, if Wisconsin Right to Life prevails here, especially with its test, which is the old way of running sham ads, the government says. You don't use the magic words "vote for" or "against" the candidate, that suddenly we're going to see in the 2008 elections massive broadcast ads by corporations and other groups that are intended to influence the elections and circumvent the very old restrictions on corporations, labor unions, against directly contributing to campaigns.

GWEN IFILL: As they left the court today, did either side seem more optimistic than the other?

MARCIA COYLE: I would say Wisconsin Right to Life probably felt somewhat optimistic. A lot's going to depend, of course as always, on what the court says. Even if Wisconsin Right to Life wins, how narrowly or broadly will the court write?

GWEN IFILL: Marcia Coyle, thanks for being there for us.

MARCIA COYLE: My pleasure.