From the NYTimes.com

Group Plans to Challenge Law on Blackout Period for Ads
By MICHAEL JANOFSKY
Published: July 28, 2004
WASHINGTON, July 27 - In the first major challenge to the new campaign
finance law's restrictions on political advertising around elections, a
Milwaukee group opposed to abortion rights plans to seek an injunction on
Wednesday that would let it run radio and television spots during a time the
law prohibits.
AdvertisementIf granted, the injunction could lead to a revision of the law, known by the
names of its sponsors, Senators John McCain of Arizona and Russell D.
Feingold of Wisconsin. It is Mr. Feingold, a Democratic candidate for
re-election in November and facing a primary in September, who is the target
of the advertisement.
The group says its advertisement does not oppose Mr. Feingold's candidacy,
but focuses on his opposition to some of President Bush's judicial nominees.
The law restricts interest groups that accept unrestricted donations called
soft money from buying television or radio commercials that mention or
depict a candidate within 30 days of a primary, or 60 days within a general
election. In a motion expected to be filed against the Federal Election
Commission with the United States District Court for the District of
Columbia, lawyers for the anti-abortion group, Wisconsin Right to Life,
argue that the ban violates the First Amendment rights of a grass-roots
organization seeking to influence policy, not politics.
The group has already begun running advertisements that encourage Wisconsin
voters to contact Mr. Feingold and the state's other Democratic senator,
Herb Kohl, to urge them to drop their opposition to some of Mr. Bush's
judicial nominations.
Under the McCain-Feingold law, which was upheld by the Supreme Court late
last year, the commercials could no longer mention Mr. Feingold by name by
mid-August, 30 days before he is a candidate in a primary election on Sept.
14.
How great an impact a favorable ruling in the case would have is unclear.
Each challenge to the law must reflect specific charges of
unconstitutionality, which means the circumstances in one case would not
necessarily apply to another.
But Trevor Potter, a former F.E.C. chairman and a lawyer who defended the
McCain-Feingold law before the Supreme Court, said favorable rulings by
lower courts in the Wisconsin case might lead to Supreme Court review of
other cases that involves advertisements.
"Once courts make an exception for one advertisement," he said, "it would
raise wholesale questions in every ad, whether there was another motive for
running it."
In the Wisconsin case, a lawyer for the plaintiffs, James Bopp Jr., said the
ban prevented the group from exercising influence in policy at the only time
it makes sense to do so - when the Senate may be considering votes on other
judicial nominees. The group contends that Mr. Feingold and Mr. Kohl have
consistently supported filibusters to block confirmation of judges that some
Democrats regard as too conservative.
Mr. Bopp insisted that the advertisements have nothing to do with Mr.
Feingold's re-election efforts, only votes he may cast during the campaign
law's blackout period, when political commercials from interest groups
cannot mention the name of a specific candidate. Mr. Kohl is not involved in
the case because he is not up for re-election until 2006.
A spokesman for the F.E.C. said the commission would have no comment before
the motion was filed.
Election-law experts said they were not surprised at the challenge. Bob
Bauer, a lawyer who represents the House and Senate Democratic campaign
committees, said it was "entirely predictable" that the blackout period
would be challenged.
"But the significance depends on what the reviewing court winds up saying,"
Mr. Bauer said, suggesting that resolution could likely take years with the
Supreme Court having final say.
Jan Baran, a lawyer for plaintiffs in the Supreme Court challenge to the
McCain-Feingold law, called the challenge a "significant development" for
seeking to create the "first major exception to the 60-day ban" on
television advertising.
"But maybe it will make Congress shorten its session," Mr. Baran said. "That
might be an indirect benefit."