April 25, 2007

ALITO BIT OF JUSTICE GOES A LONG WAY?:

Court Weighs Campaign Ads: Curbs on Firms, Unions In Run-Up to Elections May Ride on Alito Vote (JESS BRAVIN, April 25, 2007, Wall Street Journal)

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.


Posted by Orrin Judd at April 25, 2007 8:34 AM
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