BOTH RIGHT:

Justices Raise Doubts on Campaign Finance (LINDA GREENHOUSE, 4/26/07, NY Times)

The argument on Wednesday was over whether, despite the 2003 blanket endorsement, the law would be constitutional if applied to three specific ads that an anti-abortion group sought to broadcast before the 2004 Senate election in Wisconsin.

The ads, sponsored by Wisconsin Right to Life Inc., mentioned the state’s two senators, both Democrats: Russell D. Feingold, a co-sponsor of the McCain-Feingold law, who was up for re-election, and Herb Kohl, who was not. The advertisements’ focus was a Democratic-led filibuster of some of President Bush’s judicial nominees. Viewers were urged to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” The ads provided no contact information, instead directing viewers to a Web site that contained explicit criticism of Mr. Feingold.

A special three-judge Federal District Court here ruled that because the text and images of the ads did not show that they were “intended to influence the voters’ decisions,” they were “genuine issue ads” that the government could not keep off the air.

Solicitor General Paul D. Clement, arguing on behalf of the Federal Election Commission, told the justices that if these ads qualified for an exception to the law’s ban on issue ads that mention a candidate for federal office right before an election, so would many or most others, leaving the statute “wide open.”

Describing the ads as typical of those the court had reviewed when it rejected the initial challenge to the law, Mr. Clement said that a finding that these could not be regulated “just seems inconsistent” with the earlier ruling.

Chief Justice John G. Roberts Jr. turned the solicitor general’s argument against him. It was Mr. Clement who was being inconsistent, the chief justice said, noting that in an earlier phase of this case a year ago, the Supreme Court ruled that the provision could be challenged “as applied” on a case-by-case basis.

If the Roberts court were writing on a clean slate, a broad declaration of unconstitutionality might well be the result. But the court’s 2003 decision in McConnell v. Federal Election Commission, upholding the law, is so recent as to make such a bold step unlikely. Instead, many election law experts believe the fate of the statute may depend on how broad an exception the court carves out through its handling of this or future “as applied” challenges. [...]

For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.

What would happen, Justice Alito asked Mr. Waxman, if a group had been running an ad about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?

That would depend on the context, Mr. Waxman replied.

Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange-bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the A.F.L.-C.I.O.

“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, have both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.

Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”

The law’s most vigorous defense from the bench came from Justices Stephen G. Breyer and David H. Souter. “If we agree with you in this case, goodbye McCain-Feingold,” Justice Breyer told Mr. Bopp. His point was that there is an inextricable link between the law’s two major provisions: the advertising restriction and the ban on the receipt and expenditure by political parties of unregulated “soft money” from corporations and unions. If corporations can underwrite television ads, which are “the single best way to get somebody defeated or elected,” Justice Breyer said, then “forget the rule that corporations can’t contribute.”

Of course, there's no reason to treat corporations and unions like citizens' groups. Just ban them from advertising as well as contributing.

Posted by Orrin Judd at April 26, 2007 7:50 AM