Electioneering vs. free speech

With the 2008 primary season a mere eight months away, fundraising for the next presidential election has already netted tens of millions-but the rules of the campaign-finance game are about to change.

On the final day of oral arguments for the term, the Supreme Court heard the latest legal challenge to the McCain-Feingold campaign-finance act, and a majority of the Court signaled discomfort with a key provision of the legislation: an election blackout on political issue ads.

Under the "McCain-Feingold" Bipartisan Campaign Reform Act of 2002 (BCRA)-which passed Congress to much fanfare about unregulated "soft money" contributions-organizations cannot broadcast political issue ads 30 days before a primary or 60 days before a general election. So when Wisconsin Right to Life (WRTL) started airing television and radio ads over the Democratic-led filibuster of nominees to the federal judiciary in July 2004, the Federal Election Commission intervened.

The ads urged listeners to contact Sens. Russell Feingold (D-Wis.) and Herb Kohl (D-Wis.) and ask them to end the filibuster of judicial nominees. But because Feingold (also the co-author of the campaign-finance act) was running unopposed in the September primary, the FEC prohibited the ads as "electioneering communications" under BCRA.

To proponents like Sen. John McCain (R-Ariz.), Feingold, and the editorial board at The New York Times, the statute prevents a "flood of special-interest money" from overwhelming and distorting the electoral process. But with the delicious irony of First Amendment litigation, FEC v. Wisconsin Right to Life has forged an unlikely alliance of organizations and charities opposed to the ban.

Those filing amicus (or friend of the court) briefs in support of Wisconsin Right to Life included the ACLU, the National Rifle Association, and the NARAL Pro-Choice America Foundation.

The role reversal happened in the courtroom as well, with Justice Scalia challenging the Court's precedent within minutes of the opening argument. "Maybe we were wrong last time," Scalia said, interrupting Solicitor General (and former Scalia clerk) Paul Clement. "Well, Justice Scalia, I don't think you were wrong," Clement responded, defending the Court's 2003 decision in McConnell v. Federal Election Commission, which upheld the ban on "electioneering" ads as constitutional.

The pace and pitch of the questions escalated from both ends of the bench, in what Wisconsin Right to Life attorney James Bopp later called the "most intense argument of the term." Justices Breyer and Souter-both in the 5-4 McConnell majority-expressed pointed skepticism that the Wisconsin Right to Life ad constituted genuine grassroots advocacy rather than a "sham" attempt to defeat Feingold, who had voted to filibuster presidential nominees 16 times in the two years prior to the election.

"There's absolutely no evidence that anyone in Wisconsin knew his position on the filibuster," Bopp said. "You think they're dumb?" Souter shot back.

With the McConnell decision less than four years old, the outcome of the case will hinge on the willingness of Chief Justice John Roberts and Justice Samuel Alito to reverse or modify recent Court precedent. Roberts openly confirmed his belief in the constitutional stakes of the case, arguing, "I think it's an important part of their exercise of First Amendment rights to petition their senators and congressmen." But in several additional questions, he appeared to be searching for a more narrow ruling, one that would grant the as-applied challenge for Wisconsin Right to Life without overturning McConnell.

Alito sat silently during most of the argument, but the questions he did ask were similarly critical of the ban's effect on grassroots advocacy. "What do you make of the fact that there are so many advocacy groups that say this is really impractical?" he asked, alluding to the amicus brief lineup.

In a debriefing session after the oral argument, James Bopp acknowledged that the debate from the bench was more spirited than he had anticipated. But Bopp still likes his chances of curbing McCain-Feingold by excepting or eliminating the election ban on political ads.

"This is exactly what the First Amendment was intended to protect," he said. A decision in the case is expected by the end of June.