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.
from the April 25, 2007 edition
Page 2 of 3
The group says the law is being enforced in an unconstitutional manner. Lawyers for the group say its ads were a form of permissible grass-roots lobbying, not an outlawed form of electioneering communications.
Lawyers for the Federal Election Commission, Sen. John McCain (R) of Arizona, and other supporters of BCRA are asking the Supreme Court to dismiss the case and uphold the law's broad, bright-line prohibition on corporate-funded preelection broadcast advertisements.
Specifically, the law prohibits corporations or labor unions from using general treasury funds for broadcast communications that are intended to influence, or have the effect of influencing, the outcome of federal elections. The ban applies 30 days before a primary and 60 days prior to a general election.
Supporters of the measure say it must be enforced in a broad way to capture "sham" issue advertisements that are designed to look like an issue debate rather than a campaign attack ad, but which in fact are designed to undercut a particular candidate's chances of winning an election.
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.
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.
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