High Court To Revisit Campaign Finance Law

The Republican National Committee has been one of the strongest critics of the law, although McCain is one of his party's leading presidential contenders and a party to the appeal of the lower court's decision. The Bush administration is defending the Federal Election Commission against the Wisconsin antiabortion group, which has been a strong supporter of the president.

And Sen. Russell Feingold (D-Wis.) is not only one of the sponsors of the law but also the subject of the ads in question.

The 2004 radio ads put out by Wisconsin Right to Life said that a group of senators in Washington was keeping Bush's judicial nominees from getting a vote in the Senate and asked listeners to tell Feingold and the state's other senator, Herb Kohl (D), not to participate. "Contact Sens. Feingold and Kohl and tell them to oppose the filibuster," the announcer said.

But because Feingold was up for reelection, the FEC said that the group could not run the ads in the closing weeks of the election.

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, said the proper way to evaluate the ads was to look simply at what they said. They found that the ads neither endorsed nor opposed Feingold, did not mention his upcoming election and did not tell listeners whether the senator had been a part of the filibuster. They agreed with the antiabortion group's contention that the ads were "textbook" examples of issue ads.

But dissenting District Judge Richard W. Roberts said courts must view the ads in context. In this case, Wisconsin Right to Life was a longtime opponent of Feingold and had made his defeat one of its priorities. Although the language in the ad was neutral, it referred listeners to a Web site that contained highly critical reviews of the senator.

And Roberts said there could be credence to the defendants' argument that the ads were a "sham" designed to test McCain-Feingold rather than to argue for a point of view. There were no filibusters at the time that the group wanted to run the ads, and the group could have paid for them through a political action committee, upon which the restrictions would not apply.

Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the Supreme Court challenge is "going to be a prime opportunity for opponents of campaign regulations to make some headway in watering down the standards."

He said the decision by the two-member majority of the lower court that context should not be considered in evaluating the ads is "opposite what the majority of the Supreme Court found" when upholding McCain-Feingold three years ago.

What could make the outcome different this time, he said, is "simply the replacement of Justice O'Connor with Justice Alito."

The consolidated case is Federal Election Commission v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970).