Monday, April 23, 2007
WASHINGTON - A fight about what sort of political broadcast advertising should be allowed near an election will be argued before the U.S. Supreme Court for a second time Wednesday.
At stake is a landmark campaign law that Sen. Olympia Snowe helped write to close a loophole in a century-old prohibition against corporate influence in elections.
The high court has upheld the law once, but a district court has created standards since then for judging which ads that name candidates might be acceptable under the law.
An advocacy group, Wisconsin Right to Life, forced adoption of the standards by challenging the law as an unconstitutional prohibition against lobbying Congress on issues such as judicial filibusters and abortion. Supporters included the American Civil Liberties Union, the National Rifle Association, the U.S. Chamber of Commerce and the AFL-CIO.
The law's defenders, who include a Colby College professor, contend it simply reaffirms a 1907 prohibition against corporate influence on political campaigns. The law allows advocates to advertise if they don't name a candidate or if they say who paid for the ads.
The case is about the 2002 Bipartisan Campaign Reform Act, the most significant campaign reform since laws enacted following the Watergate scandal a generation ago.
The law abolished unlimited contributions from corporations and unions to political groups that couldn't be spent on actually urging support or opposition for a candidate. So-called "soft money" totaled $500 million in 2000.
Snowe's addition to the law prevented such groups from naming federal candidates in the month before a primary or two months before a general election.
The goal was to get rid of sham ads that criticize a candidate yet only urge viewers to contact a lawmaker, rather than vote against the candidate.
In contrast, ads paid by campaigns or political action committees must declare who gave them money and, in exchange, can urge support or opposition.
"The very purpose of the restrictions is to ensure that election advocacy is funded by an organization's members and reflects their willingness to contribute to such advocacy -- not the greater resources that can be amassed by corporations," wrote Seth Waxman, a former solicitor general representing the law's defenders.
Wisconsin Right to Life sought to air ads in 2004 that criticized lawmakers blocking the confirmation of federal judges and urged viewers to contact Sen. Russ Feingold, D-Wis. The group had a political action committee and named Feingold's defeat a top priority.
However, the corporation, through Indiana lawyer James Bopp, argued that it should be allowed to air lobbying ads without violating the campaign law. Numerous advocacy groups sought court instructions for what advertising might be allowed, so that they didn't have to challenge the law every time they wanted to advertise.
"A clearly defined safe harbor solves both problems," wrote Steven Shapiro, a lawyer for the American Civil Liberties Union. "By minimizing the chilling effect on speakers, it also reduces the need for litigation in the vast majority of cases."
The U.S. District Court for the District of Columbia didn't allow the filibuster ads in 2004. But after the Supreme Court sent the case back, the lower court developed rules defining what would be acceptable.
Acceptable ads scrutinize legislation or a candidate's voting record without urging support or opposition -- or even mentioning that the target is a candidate.
"Without robust political debate, the people cannot govern themselves effectively," said Senate Minority Leader Mitch McConnell, R-Ky., who opposed the law and challenged it at the Supreme Court.
Defenders of the law criticized that approach as gutting the reform law and threatened to reopen the loophole that Congress had closed for corporate and union advertising.
"As is obvious from the timing, content and context of WRTL's ads, they were designed to influence Sen. Feingold's bid for re-election and, if permitted to air, would likely have had just that effect," argued Anthony Corrado, a government professor at Colby College who studies campaign finance.
Washington Correspondent Bart Jansen can be contacted at (202) 488-1119 or at:
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