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Supreme Court to hear campaign finance case
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by Ryan Masse and Carolyn Smith
Thursday, September 29, 2005
The U.S. Supreme Court resuscitated Wisconsin Right to Life's legal challenge of the Bipartisan Campaign Reform Act of 2002 Wednesday by agreeing to hear oral arguments in the anti-abortion group's case against the Federal Elections Commission.
The lawsuit, which was previously heard in the U.S. Court of Appeals for the District of Columbia, arises from WRTL's attempts to run certain television and radio ads during the 2004 election cycle. The ads mentioned the name of U.S. Sen. Russ Feingold, D-Wis., but because Feingold was up for reelection that year, they could not be run under federal campaign-finance laws.
"[The current law] is a violation of free speech," Barbara Lyons, executive director of Wisconsin Right to Life, said. "One of the basic rights citizens have as individuals and as groups is to petition their government."
President Bush signed the act — formally named the Bipartisan Campaign Reform Act — into law in 2002. Also known as the McCain-Feingold Act for its chief Senate sponsors, it was the first major change in the country's campaign-finance laws since the 1970s.
Among the major components of the law is a prohibition on television and radio advertisements mentioning a federal candidate within 30 days of a primary election and 60 days of a general election. It came as a response to the rise in the 1990s of phony electronic-media "issue advocacy" ads, which amounted to campaign ads veiled by the guise of promoting a certain stance on an issue.
The provision prevented WRTL from running its proposed ads, which asked viewers to contact Feingold and fellow Democratic Sen. Herb Kohl and urge the two not to filibuster Bush's judicial nominees.
But Lyons says WRTL's ads had nothing to do with campaigning. Rather, they simply were "grassroots lobbying ads" that did not criticize either of the senators.
"The Bipartisan Campaign Reform Act essentially interferes with the ability of a citizen group to contact people and have them contact their legislators," Lyons said. "And it prohibits you from mentioning someone who is already an elected official and mentioning their names in using the electronic media on an issue that is before the Congress."
University of Wisconsin political science professor Donald Downs said he sympathizes with WRTL's case, but questioned whether the high court will agree.
"I think they have a valid argument, but whether the court buys it or not is another issue," Downs said. "Otherwise they're saying during an election, people can't talk about important issues that involve the courts and just say, 'Contact your congressman about it.' That's nonsense."
The Supreme Court already ruled BCRA constitutional in 2003 in McConnell v. FEC. But two judges in that decision — Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor — have left the court, meaning a different ruling could result.
WRTL is not challenging the law on its face, however, but rather as it has been applied in its case. Thus, they are not asking the court to consider the law's constitutionality.
Oral arguments are expected to begin in January.
"We think we have a good chance of getting an affirmative response from the Supreme Court," Lyons said.
