Court clips campaign-finance law

The Federal Election Commission violated the free-speech rights of a Wisconsin advocacy group when the commission censored election-eve issue advertisements under the 2002 McCain-Feingold campaign-finance law.

In an important decision upholding First Amendment protections of corporations and unions to engage in certain kinds of political activity, the US Supreme Court on Monday ruled 5 to 4 that a key portion of the McCain-Feingold law had been unconstitutionally applied to the group, Wisconsin Right to Life Inc.

The group was barred by the FEC from airing certain television and radio advertisements prior to the 2004 federal election in Wisconsin because the advertisements were viewed as the functional equivalent of direct electioneering advertisements, which are regulated under the campaign-finance law.

The majority justices said the group's ads were not the functional equivalent of electioneering ads and should not have been blocked.

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

Three members of the majority, Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas would have gone further and overruled the issue-advertising section of the McCain-Feingold law.

Instead, the court declared that the law was unconstitutional only as it had been applied to the Wisconsin group. The high court ruling yanks a few teeth out of the law, officially known as the Bipartisan Campaign Reform Act of 2002 (BCRA).

In a dissent, Justice David Souter said the decision "effectively and unjustifiably" overturns an earlier high court ruling upholding regulations of corporate and union issue ads.

"After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending ... are open to easy circumvention," Justice Souter wrote. "The ban on contributions will mean nothing much," he added, "now that companies and unions can save candidates the expense of advertising directly, simply by running 'issue ads' without express advocacy."

Monday's decision will make it easier for unions and corporations to use unregulated money to fund last-minute issue ads that may help or hurt certain candidates for federal office. It will also permit unions and corporations to continue to engage in grass-roots lobbying of elected officials even during election campaigns.

In passing BCRA, Congress had sought to close what campaign-finance reformers called a loophole in existing election laws. That loophole, they argued, permitted corporations, unions, and other wealthy special interests to influence federal elections by spending millions of dollars on so-called issue ads. For example, in the 2000 election cycle 130 groups spent more than $500 million on 1,100 different ads.

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