WASHINGTON (BP)–A pro-life organization urged the U.S. Supreme Court Jan. 17 to support its freedom to mention public officials by name in advocacy advertising in the weeks before elections.
The justices heard oral arguments in Wisconsin Right to Life’s challenge of a portion of the 2002 federal campaign finance reform law. An opinion in the case could be issued by the high court before it adjourns in late June or early July.
In granting review of the case, the Supreme Court returned to a controversial portion of the campaign reform law to consider whether the pre-election advertisements of advocacy groups can be regulated. The high court upheld the entire law — known as McCain-Feingold after its main sponsors, Sens. John McCain, R.-Ariz., and Russell Feingold, D.-Wis. -– in a 2003 ruling, but the Wisconsin pro-life organization sued the Federal Election Commission in the hope the courts would find the advertising ban unconstitutional in cases of issue ads that are designed to influence legislation, not elections. A federal court, however, ruled against the pro-life organization.
During oral arguments before the high court, Wisconsin Right to Life received some encouraging signs. Chief Justice John Roberts and Associate Justice Antonin Scalia both appeared to be skeptical of the advertising ban.
Roberts asked U.S. Solicitor General Paul Clement, who was defending the law, about a scenario in which an organization runs an ad on an issue every month. Roberts then asked if the ad would become illegal in the months preceding an election, the Associated Press reported. Clement said the organization could use the ad if political action committee funds paid for it or if the ad did not identify a candidate, AP reported.
That would undermine the ad’s purpose, Scalia told Clement. “The point of an issue ad is to put pressure on an incumbent you want to vote your way,” Scalia said, according to AP.
The Wisconsin Right to Life ad involved Feingold and his 2004 re-election bid, which was successful. The ad encouraged calls to Feingold and Wisconsin’s other senator, Democrat Herb Kohl, asking them to oppose filibusters of President Bush’s judicial nominees.
The inclusion of Kohl’s name in the advertisement seemed to support Wisconsin Right to Life’s contention it was seeking to influence policy, not an election, Roberts said, according to AP.
Some justices, however, expressed skepticism of the pro-life organization’s position.
Associate Justice Ruth Bader Ginsburg wondered why the organization did not wait until after the election to run the ad, AP reported. According to AP, Associate Justice Stephen Breyer told James Bopp, Wisconsin Right to Life’s lawyer, that he had “a very good argument. But it’s an argument we just heard in that [2003] case…. Or are you asking us to go back and undo what we did?”
Bopp told the justices, according to LifeNews.com, “There is an immediate need to influence how government is regulating and taxing us. There’s more to government than elections.”
The campaign reform law bars labor unions and corporations from including a candidate’s name in ads 30 days before a primary election and 60 days before a general election. The provision also has been applied to non-profit advocacy organizations, such as Wisconsin Right to Life.
When the Supreme Court upheld McCain-Feingold, Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, called it “a disaster for Americans’ First Amendment guarantee of freedom of speech.”
The vote in the 2003 opinion was 5-4, with Associate Justices John Paul Stevens, Sandra Day O’Connor, David Souter, Ginsburg and Breyer in the majority. O’Connor has announced her retirement, and federal appeals court judge Samuel Alito is expected to be confirmed soon by the Senate to replace her. If he is, it sets up the possibility of a 4-4 tie in the case, since O’Connor would not take part in the decision. New oral arguments might then be held in the case.
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