High court eases limit on election 'issue ads'

WASHINGTON - The Supreme Court yesterday substantially weakened restrictions on the kinds of television ads that corporations and unions may finance in the days before an election, giving special-interest groups the opportunity for a far more expansive role in the 2008 elections.

Chief Justice John G. Roberts Jr. wrote the 5-4 decision, saying the McCain-Feingold campaign-finance law's ban on the use of a candidate's name in the days before an election was an unconstitutional infringement on such groups' rights to advocate on issues.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Roberts wrote. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

It was a rare decision that united the U.S. Chamber of Commerce and the AFL-CIO in praise.

"This could reorder the advertising strategies of corporate America and labor unions in the 2008 elections," said former Federal Elections Commission chairman Michael Toner. Critics of the decision said it would encourage a financial arms race among well-heeled special-interest groups.

"This is a big win for big money," League of Women Voters president Mary Wilson said in a statement. "Chief Justice Roberts has reopened the door to corruption."

The decision in the consolidated case of Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life came on a day that clearly illustrated how the addition of Roberts and Justice Samuel A. Alito Jr. has shifted the balance of a court closely divided on social issues. The five-member majority that includes Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy prevailed in each of yesterday's rulings.

The campaign-finance case also brought another dissent read from the bench by a member of the court's liberal wing eager to draw attention to what they say is a majority too willing to jettison the court's past rulings.

"The court (and, I think, the country) loses when important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here," Justice David Souter wrote, joined in dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

The portion of the law in question - formally, the Bipartisan Campaign Reform Act of 2002 - says corporate entities may not use money from their general treasuries to broadcast ads that run 30 days before a primary or 60 days before a general election, are aimed at a relevant electorate, and mention a federal candidate by name. Labor unions and groups such as the National Rifle Association are included in the law.

Forbidding the naming of candidates was important in the law. Congress was looking for a "bright-line" restriction to do away with "sham" issue ads that purport to be about a controversy, but amount to an attack on a candidate.

The court in 2003 said the "vast majority" of such issue ads fell into the category of electioneering, and it upheld the restriction as constitutional. But last year, the justices ruled that groups could challenge the law based on specific applications.

The case decided yesterday involved a group called Wisconsin Right to Life, which was restricted from running ads in 2004 that urged listeners to call the state's two senators and tell them not to filibuster President Bush's judicial nominees. One of the senators - Democrat Russell Feingold, one of the sponsors of the law - was up for re-election and had been targeted for defeat by the antiabortion group.

The court majority rejected the argument of the law's defenders that the intent of the organization should be considered, and said the important aspect of the ad was whether it advocated the election or defeat of a candidate.

Roberts established a new rule "that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

While they agreed with the outcome, Scalia, Kennedy and Thomas called that test "impermissibly vague" and said the entire provision should be declared unconstitutional; Alito said he would be sympathetic to that if this test proved unworkable.

But Souter and others said Roberts might as well have taken the next step.

"After today," Souter wrote, "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."

James Bopp, who represented the antiabortion group, said the court's decision was "broader and more protective of issue advocacy than we argued for."

The ruling was more unwelcome news for the presidential campaign of Sen. John McCain (R., Ariz.), who is falling in the polls and struggling to keep pace with his rivals in fund-raising. His support of campaign-finance regulations has been a sore point among conservatives, and rival Mitt Romney was quick to chime in that the ruling showed "McCain-Feingold was a poorly crafted bill."

McCain noted the decision "does not affect the principal provision of the Bipartisan Campaign Reform Act, which bans federal officeholders from soliciting soft-money contributions for their parties to spend on their campaigns."

Read the justices' ruling in the campaign-

finance case via http://go.philly.com/adruling

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Excerpts from the 5-4 decision in which the Supreme Court gave corporations and labor unions wide latitude in airing advertisements close to elections:

The First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the "functional equivalent" of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy. . . . Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.

- Chief Justice John G. Roberts Jr., in his majority opinion

At a critical level, contributions that underwrite elections are leverage for enormous political influence. Voters know this. . . . 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.

- Justice David H. Souter, in dissent

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