Supreme Court Weakens Campaign Finance Law

June 25, 2007 — -- In a decision Monday that is sure to reignite the debate over campaign finance reform, the Supreme Court limited the effect of the landmark campaign finance laws passed in 2002.

At issue were ads that the anti-abortion rights group, Wisconsin Right to Life, sought to run within 30 days of Wisconsin's September 2004 primary.

At the time, the Senate was engaged in a fierce debate on whether to oppose several of President Bush's nominees to the federal bench. Some Democrats were organizing an effort to filibuster the nominations. The ads, a part of a grassroots effort by the anti-abortion rights group, encouraged voters to contact the two Democratic senators from Wisconsin, Russell Feingold and Herb Kohl, and urge them to oppose the filibuster.

Because Feingold was seeking re-election at the time and the ads mentioned him by name a month before his primary, opponents of the ads charged that they would be in violation of the McCain-Feingold legislation that prohibits "electioneering communication" 30 days before a federal primary election or 60 days before a federal general election.

Opponents called the ads "sham issue ads" and claimed that such ads were what McCain-Feingold was created to combat.

Wisconsin Right to Life argued the ads were not in violation of the law because they never made mention of the upcoming election and were the product of the group's First Amendment rights to petition the government.

Writing for a 5-4 majority Monday, Chief Justice John Roberts concluded that the ads at issue are not "the 'functional equivalent' of express campaign speech."

In allowing the ads, Roberts wrote, "The First Amendment requires us to err on the side of protecting political speech rather than suppressing it." Calling the ads "issue advocacy," Roberts wrote, "We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy."

Barbara Lyons, executive director of Wisconsin Right to Life, said, "This ruling is a victory for freedom of speech and for the right of the people to participate in government as is guaranteed by the First Amendment."

The majority fell short of overturning the campaign finance legislation. Wrote Roberts, "We have no occasion to revisit that determination today."

Justice David Souter, writing the dissent for the court's liberal justices, wrote that the ads should have been illegal under McCain-Feingold. He wrote, "Given these facts, it is beyond all reasonable debate that the ads are constitutionally subject to regulation."

Souter warned that Monday's decision weakened the court's prior precedent that had upheld the section of McCain-Feingold dealing with electioneering communications. Souter wrote, "The Court (and, I think, the country) loses when important precedent is overruled without good reason."

Souter warned about the impact of the ruling: "After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear."