WASHINGTON (BP)–A divided U.S. Supreme Court will decide in the next few months whether a 2002 federal law that governs the financing of election campaigns violates the First Amendment protections of freedom of speech and association.
Oral arguments before the Supreme Court Sept. 8 over the Bipartisan Campaign Reform Act — known widely as McCain-Feingold for its two Senate sponsors, John McCain, R.-Ariz., and Russell Feingold, D.-Wis. — focused on the constitutionality of prohibiting “issue ads” in the weeks before an election and banning “soft money,” donations supposedly sent to state political parties and not previously regulated by federal law.
The court appeared to be split, with Associate Justice Sandra Day O’Connor a possible swing vote, The Washington Post reported. Chief Justice William Rehnquist and Associate Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas seem to be skeptics of the law’s constitutionality, while associates John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer are likely supporters of its legality, according to The Post.
Though the vast majority of the arguments dealt with “issue ads” and “soft money,” the justices also heard First Amendment lawyer Jay Sekulow argue that the law’s ban on minors contributing to political candidates is unconstitutional.
“Minors, like all Americans, have the right of freedom of speech and of association. But under this flawed law, minors are singled out and their constitutional rights trampled,” said Sekulow, chief counsel of the American Center for Law and Justice, in a written statement.
Sekulow represented six politically active young people, between the ages of 13 and 17, from Alabama, Georgia and Florida.
The oral arguments in the case were unusual in at least two respects. They were held Sept. 8, weeks before the traditional October date for the first arguments of a term. They also were four hours long, when arguments normally are only an hour in length.
The Southern Baptist Ethics & Religious Liberty Commission was among several organizations with diverse public policy views that opposed enactment of the measure.
Messengers to the 2001 Southern Baptist Convention adopted a resolution that opposed any campaign finance law “that hinders or abridges free speech.” As the measure worked its way through Congress the next year, ERLC President Richard Land asked President Bush to veto it. “While it deals with some of the campaign finance abuses, the price is too high, in that some of its provisions violate our First Amendment, freedom of speech guarantees,” Land said.
Bush, however, signed the bill into law while acknowledging it presented “some legitimate constitutional questions.”
In addition to the ERLC, other opponents of the law were the National Right to Life Committee, Family Research Council, Christian Coalition, American Conservative Union, Americans for Tax Reform, American Civil Liberties Union and National Rifle Association.
Specific objections expressed by the ERLC and others included:
— A provision that bars advocacy organizations classified as 501(c)(4) by the Internal Revenue Service from financing television or radio ads that include the name of a candidate, including a member of Congress, for 60 days before a general election and 30 days prior to a congressional primary.
— A fall-back measure that prohibits at any time a broadcast ad that “promotes” or “attacks” a candidate and is considered to be “suggestive” of a vote for or against a candidate.
— A section that bans communications year-round from advocacy groups determined to be in coordination with a member of Congress, with no “agreement or formal collaboration to establish coordination” required.
During the Sept. 9 oral arguments, former Whitewater independent counsel Kenneth Starr and free-speech specialist Floyd Abrams were among those contending on behalf of the law’s foes, while current Solicitor General Ted Olson and Seth Waxman, solicitor general under President Clinton, defended the measure.
A special three-judge federal panel ruled in May against some portions of the law, including the provision barring minors’ contributions.