From the Wall Street Journal:

Court Weighs Campaign Ads
Curbs on Firms, Unions
In Run-Up to Elections
May Ride on Alito Vote
By JESS BRAVIN
April 25, 2007; Page A6

WASHINGTON -- The 2008 elections are expected to produce a blizzard of political advertisements, and the Supreme Court will hear arguments today that could determine how much businesses and labor unions can contribute to the storm.

Such groups are challenging a federal law that limits their funding of television and radio ads in the weeks before an election. The dispute has scrambled many political alliances, with the National Rifle Association, the American Civil Liberties Union, the AFL-CIO, the U.S. Chamber of Commerce and the Republican National Committee lined up to urge the court to loosen the restriction.


The Bush administration, meanwhile, is defending the law, backed by a group of prominent former ACLU officials. Sen. John McCain (R., Ariz.) has intervened on behalf of the law, which he helped write and push through Congress, while Senate Minority Leader Mitch McConnell (R., Ky.) has filed a brief in opposition.

The lineup shows that regardless of their views on substantive issues, powerful interests on all sides see the utility of independently funding political ads during the run-up to an election.

The case could also test the court's new conservative majority. Where retired Justice Sandra Day O'Connor had voted to uphold some campaign-finance regulations, her successor, Justice Samuel Alito, has been skeptical of efforts to police the political arena through campaign-finance regulations and court-imposed redistricting rules.

Larry Noble, a former Federal Election Commission general counsel now with law firm Skadden, Arps, Slate, Meagher & Flom, says that even if the court adopts a strict interpretation of the regulation, there will be no shortage of political advertisements in the months ahead. "Most of the candidates are not having any trouble fund raising."

The issues behind the dispute date back more than a century, when Congress first restricted corporate spending on political campaigns. They also reflect the court's long struggle to distinguish permissible regulation that promotes fair elections from overbroad rules that stifle America's freewheeling marketplace of political ideas.

In a 1976 case, for example, the court found limits on political contributions permissible, but those on campaign spending unconstitutional. Last year, the court struck down a Vermont law for imposing too low a limit on political contributions -- as low as $200 for state legislative candidates.

The disputed regulation barring corporate and labor TV and radio ads as much as 60 days before an election is part of the Bipartisan Campaign Reform Act, widely known for its Senate sponsors, Mr. McCain and Russ Feingold (D., Wis.).

The provision aims to keep corporations and unions from using their wealth to unfairly influence elections, says Scott Nelson, an attorney with advocacy group Public Citizen. If the FEC loses, Mr. Nelson says, corporations and, to a lesser degree, unions, could spend "hundreds of millions of dollars" in the run-up to the next election for negative ads.

In 2003, the Supreme Court upheld most of the law from a wide-ranging attack filed by Sen. McConnell. But the ruling, in which the nine justices splintered across eight separate signed opinions, was far from the last word.

Last year, the court acknowledged that in some cases, the regulation of corporate-financed "electioneering communications" potentially could be enforced in a way that impinged on First Amendment free-speech and association rights.

The unsigned opinion opened the door to a lawsuit brought by Wisconsin Right to Life Inc. against the Federal Election Commission, which enforces McCain-Feingold, over a set of ads aired before the 2004 elections. While the FEC considered the ads to be prohibited "electioneering communications," Wisconsin Right to Life said the ads, which it financed with money supplied by undisclosed corporations, comprised constitutionally protected "grass-roots lobbying."

The provision bars corporations and labor organizations from funding "electioneering communications" on TV or radio for 30 days prior to a primary and 60 days prior to a general election. To fall under the restriction, the ad must refer to "a clearly identified candidate for federal office" and, for House and Senate races, target the candidate's constituency, defined as an audience of at least 50,000.

There are some exceptions. For instance, ideological lobbying groups organized as nonprofit corporations can run such ads, as long as they don't accept donations from corporations or unions that are themselves restricted under McCain-Feingold. Corporations and unions also can form and make limited contributions to separate political action committees that pay for campaign ads. And the curbs don't apply to other forms of political ads -- in newspapers, on the Web or through bumper stickers, billboards or telephone calls.

In 2004, Senate Democrats, then in the minority, used a filibuster to block some Bush nominees to appellate courts. The president's supporters focused on the filibuster as a reason for conservative voters to elect Republicans. During the covered period, Wisconsin Right to Life ran one TV and two radio ads against the filibuster. The ads criticized an unnamed "group of senators" for using a filibuster to block "qualified candidates" from getting a "chance to serve" as judges. "Contact Senators Feingold and [Herb] Kohl and tell them to oppose the filibuster," the ads said.

Sen. Kohl, a Wisconsin Democrat, wasn't on the ballot, so the ad could have mentioned him with no controversy. But Sen. Feingold was seeking re-election, and the FEC found the ads in violation. Mr. Feingold won his race by 12 percentage points.

In December, a special panel of the U.S. District Court here voted 2-1 for Wisconsin Right to Life. The court observed that "to the untutored viewer's eye, the ads, on their face, neither reveal either senator's thinking on the issue nor reference Sen. Feingold's upcoming election contest." It therefore found the ads couldn't be considered an attempt to influence voters, and fell outside the McCain-Feingold regulation.

The FEC says that it's a mistake to look only at the ad's text. Instead, it argues that the ad has to be considered in its overall context -- and that few could mistake Wisconsin Right to Life's real objective. The organization had opposed Sen. Feingold since he was first elected in 1992, spent $60,000 in a failed effort to unseat him in 1998, and in 2004 listed his defeat as a priority.

James Bopp Jr., the lawyer representing Wisconsin Right to Life, says the contextual approach could invite federal officials to launch "scorched earth" investigations into the inner workings of private organizations. It would "chill people from doing genuine issue ads," shutting down robust debate over important issues for weeks at a time.

The Wisconsin ads would have been permissible under McCain-Feingold had they said "contact your senators," instead of identifying them by name, but Mr. Bopp says that's not a workable alternative.