Justices Raise Doubts on Campaign Finance

From The New York Times:

WASHINGTON, April 25 — The Supreme Court put defenders of the McCain-Feingold campaign finance law on the defensive on Wednesday in a spirited argument that suggested the court could soon open a significant loophole in the measure.

At issue is a major provision of the five-year-old law that bars corporations and labor unions from paying for advertisements that mention the name of a candidate for federal office and that are broadcast 60 days before an election or 30 days before a primary. By a 5-to-4 vote in December 2003, the court held that the provision, on its face, passed First Amendment muster.

But a new majority may view more expansively the Constitution’s protection of political messages as free speech, and invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear.

The argument on Wednesday was over whether, despite the 2003 blanket endorsement, the law would be constitutional if applied to three specific ads that an anti-abortion group sought to broadcast before the 2004 Senate election in Wisconsin.

The ads, sponsored by Wisconsin Right to Life Inc., mentioned the state’s two senators, both Democrats: Russell D. Feingold, a co-sponsor of the McCain-Feingold law, who was up for re-election, and Herb Kohl, who was not. The advertisements’ focus was a Democratic-led filibuster of some of President Bush’s judicial nominees. Viewers were urged to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” The ads provided no contact information, instead directing viewers to a Web site that contained explicit criticism of Mr. Feingold.

A special three-judge Federal District Court here ruled that because the text and images of the ads did not show that they were “intended to influence the voters’ decisions,” they were “genuine issue ads” that the government could not keep off the air.

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If the Roberts court were writing on a clean slate, a broad declaration of unconstitutionality might well be the result. But the court’s 2003 decision in McConnell v. Federal Election Commission, upholding the law, is so recent as to make such a bold step unlikely. Instead, many election law experts believe the fate of the statute may depend on how broad an exception the court carves out through its handling of this or future “as applied” challenges.

The four dissenters from the 2003 decision were Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, all of whom are still on the court, and Chief Justice William H. Rehnquist. Chief Justice Roberts appeared fully prepared to step into his predecessor’s shoes. So all eyes were on the court’s other newcomer, Justice Samuel A. Alito Jr., who as the successor to Justice Sandra Day O’Connor, a co-author of the 2003 decision, probably holds the balance.

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My Comments:
I'm reading this and wondering: What country do I live in where allegedly "liberal" or "progressive" Supreme Court Justices like Breyer and Souter are fretting that "allowing" someone's political advocacy (i.e. the sort of speech the 1st Amendment was meant to protect, unlike, say, the pornography that Breyer and Souter seem to believe is protected) might "gut" a law passed by Congress (remember "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."?) regulating clearly political speech during the period preceding an election? What's wrong with this picture? Could it be that the "liberal" Justices are concerned that traditional values groups like Wisconsin Right to Life are more effective at utilizing such advocacy than their more liberal counterparts?

And be sure not to miss this post over at Amy Welborn's about how John McCain - already mistrusted among those in the pro-life community (with good reason) - is going about winning friends and influencing people among pro-lifers by trying to disenfranchise them of their 1st Amendment rights.