When the US Supreme Court upheld the McCain-Feingold campaign-finance law in 2003, the decision sharply split the nine-member court.
The crucial swing vote was wielded by then-Justice Sandra Day O'Connor, who sided with the court's liberal wing in a 5-to-4 decision affirming congressional limitations on certain forms of campaign speech and spending.
On Wednesday, the court revisits a key portion of that 2003 ruling – a provision that restricts issue advertisements funded by corporations and labor unions during the run-up to a federal election. But the case arrives before a different lineup of justices.
The case is being closely watched not only for the important campaign-finance and free-speech implications, but also because many court analysts are anxious to see if the same internal dynamic in last week's high-court abortion ruling will play a role in the two consolidated campaign-finance cases now before the court.
In the abortion case, the retirement of Justice O'Connor and her replacement with the more conservative Justice Samuel Alito paved the way for a conservative shift in the court's abortion jurisprudence. Election-law specialists say the same swing vote could be provided in the campaign-finance cases by either of the two newest members of the court – Justice Alito or Chief Justice John Roberts.
"All the court-watchers who paid attention to the confirmation process of John Roberts and Samuel Alito identified 'partial-birth' abortion and campaign finance as the precedents most likely to be reversed in the short term," says Nathaniel Persily, an election-law expert and professor at the University of Pennsylvania Law School in Philadelphia.
At issue in the campaign-finance cases, set for oral argument on Wednesday, is whether the Bipartisan Campaign Reform Act (BCRA) of 2002 violated the free-speech rights of a Wisconsin-based advocacy group. The group, Wisconsin Right to Life, was barred from running three broadcast advertisements critical of US Senate incumbent Russ Feingold (D) of Wisconsin in the days leading up to the 2004 election.
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.
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.