Court Weighs Political Ads

WASHINGTON The Supreme Court today heard a case that could roll back campaign finance laws and allow millions of dollars in political ads to be aired in the weeks leading up to the 2008 primaries and general election.

At issue in the Federal Election Commission v. Wisconsin Right to Life are what distinguishes political ads from lobbying messages, who can air the ads and when those ads can appear. The 2002 McCain-Feingold Act prevents corporations and labor unions from paying for ads naming a candidate for federal office that are broadcast 60 days before an election or 30 days before a primary.

The Wisconsin anti-abortion group ran ads leading up to the 2004 election urging citizens to contact their U.S. Senators, Democrats Herb Kohl and Russ Feingold, to oppose judicial filibusters. At the time, Democrats were filibustering several of George W. Bush’s nominees to the federal bench. But the anti-abortion group was prohibited from airing the ads during the blackout period and it sued.

Attorney James Bopp, who represents the anti-abortion group, argued in court today that the ads were a form of grass-roots lobbying, rather than messages that advocated the election or defeat of a candidate. “I think the government’s problem here is that they are repudiating the distinction between sham and legitimate issue ads,” Bopp said.

But Associate Justice Stephen Breyer pointed out that the ads directed people to a Web site which encouraged people to vote against Feingold. “It said defeat him, defeat him, defeat him,” Breyer said. “That sounds like they had defeat in mind. What you are asking for is to say McCain-Feingold is unconstitutional.”

Associate Justice Antonin Scalia then asked, “Why should this court, only a year or two after upholding McCain-Feingold, overturn it?”

Solicitor General Paul Clement, arguing on behalf of the FEC, said the Supreme Court had already decided that Congress could regulate the vast majority of ads run during an election cycle. “The ads took the form of advocacy,” Clement said.

The Supreme Court is expected to rule before the 2008 primary season begins.