Thursday, April 26, 2007
By BART JANSEN
Washington D.C. Correspondent
WASHINGTON - Supreme Court justices grappled Wednesday with the question of what circumstances -- if any -- would allow advocacy groups to broadcast ads naming federal candidates right before an election.
The battle lines appeared to match those that surfaced when the court upheld a landmark campaign law, sponsored by Maine Sen. Olympia Snowe, that blocked last-minute special-interest ads targeting specific candidates.
"Maybe we were wrong last time," Justice Antonin Scalia said, drawing laughter. He had opposed the law and was on the losing side of a 5-4 decision in 2003 that upheld it.
Solicitor General Paul Clement, who represented the Federal Election Commission, suggested that the court wasn't wrong.
The law prohibits any third-party group from naming federal candidates in the month before a primary or within two months of a general election. The goal was to get rid of ads that target candidates without actually urging votes for or against them. Third-party groups spent $500 million on such ads during the 2000 campaign.
In contrast, ads paid for by campaigns or political action committees must declare who gave them money and, in exchange, can support or attack a candidate.
The high court upheld the advertising law, but said specific ads might still be allowed.
The group Wisconsin Right to Life tried to use that opening when it took steps to air radio and television ads in 2004 that criticized lawmakers who were blocking the confirmation of federal judges. The ads urged voters to contact one of those lawmakers, Sen. Russ Feingold, D-Wis.
The group had a PAC and named Feingold's defeat as a top priority.
The U.S. District Court for the District of Columbia disallowed the ads, but the Supreme Court sent the case back. The lower court then developed rules stating that acceptable ads could scrutinize legislation or a candidate's voting record without urging support or opposition -- or even mentioning that the target is a candidate.
The court said judges should review only the words in an ad when reviewing whether they were appropriate.
Clement, the solicitor general, said a proposed Maine ad is a better example of an ad that the court could allow.
The Maine Christian Civil League sought to run ads urging voters to call Snowe, R-Maine, to support a law banning same-sex marriage. But courts blocked the group from running the ad before the 2004 primary, despite that fact that Snowe was unopposed.
"That starts to sound like a pretty good challenge," Clement said.
Justice Ruth Bader Ginsburg, who supported the law's restrictions, noted that Wisconsin Right to Life opposed Feingold every time he ran for office. "It's no secret they were opposed to his candidacy," she said.
Justice Stephen Breyer noted that the Wisconsin ad referred viewers to a Web site that said of Feingold "defeat him, defeat him, defeat him."
"I mean, that sounds as if they have defeat in mind," Breyer said.
But James Bopp, a lawyer representing the Wisconsin group, argued that criticizing government is at the heart of the First Amendment. He denied there was anything on the Web site about defeating Feingold, just information about filibustering judges.
"If we can't run the ads, we can't draw people's attention to the Web site," he said.
A decision on the Wisconsin case is expected in June.
Washington D.C. Correspondent Bart Jansen can be contacted at (202) 488-1119 or at:
Reader comments
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Its time to reevaluate campaign finance reform. Indeed its time to reexamine our election process. Gerrymandering has rendered entire districts largely without meaningful representation and party faithful rubber-stamp incumbents back into office.
The number of contested races has steadily dwindled year over year, enabling the safe return of incumbents in over 95% of elections. That is a problem our country needs to address.
The current campaign finance laws and loopholes have made the problem worse rather than better, allowing candidates and their supporters to subvert the process through the use of PACs and other financing vehicles.
I don't think this was an intended consequence and it needs to be changed - sooner rather than later.
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