US Supreme Court reviews limits on political ads
Campaign-finance and free-speech issues are involved, and the case could reveal dynamics at the high court.
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Opponents of BCRA say the federal government has no business censoring discussions of issues, particularly in the days prior to an election. These opponents call BCRA an incumbent protection plan that turns the free-speech guarantees of the First Amendment on their head to silence speech rather than to promote more of it. "The roots of this case ... lie in the right of the people to engage in self-government by employing their First Amendment liberties to amplify their voices," writes James Bopp in his brief to the court on behalf of Wisconsin Right to Life.Skip to next paragraph
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When it attempted to place radio and TV ads during the 2004 campaign, Mr. Bopp says, the group was not engaged in electioneering. It was waging a grass-roots lobbying effort to persuade a group of Democrats in the US Senate to abandon their campaign to filibuster President Bush's judicial nominees. "Grassroots lobbying has only a remote and speculative effect on elections," Bopp writes.
In defending the broad, bright-line prohibition in BCRA, Solicitor General Paul Clement says in his brief that corporations are free to air genuine issue ads provided they avoid mentioning any federal candidate by name. He says corporations are also free to air political ads without government restraint if the ad is paid for by political-action committee money rather than funds from the corporation's general treasury.
Mr. Clement warns the justices that if they embrace exemptions suggested by Wisconsin Right to Life, those exemptions would authorize the "vast majority" of ads that otherwise would be barred under BCRA. Such a development would "open the door for massive circumvention of BCRA's financing restrictions," Clement says.
Bopp counters that the government's position authorizes a level of censorship so sweeping that perhaps the only appropriate remedy is to declare that section of BCRA unconstitutional.
Although some scholars are urging that action, other analysts say the high court is unlikely to take such a dramatic step.
"What you may see in the campaign-finance cases is similar to abortion cases – a slow erosion of precedents without any punctuated overturning of previous cases," says Mr. Persily. He says that in last week's decision involving so-called partial-birth abortion, rather than overturning the court's existing precedent handed down seven years ago, the court drew distinctions between the two cases. That is, the action eroded the existing precedent without completely overruling it.
The majority of justices may act with similar caution in the campaign-finance cases, analysts say.
"Generally speaking, appointments to the court are not supposed to completely change the meaning of the First Amendment within four years," Persily says. "The more likely course of action is an opening up of an exception to the previous ruling, and that exception may then slowly swallow the rule."
The cases are Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life. A decision is expected by late June.