Judging Campaign Ads
A different Supreme Court revisits the McCain-Feingold law on election financing.

Wednesday, April 25, 2007

ONE OF CONGRESS'S goals in passing the McCain-Feingold campaign finance law was to stop the proliferation of sham "issue ads" -- political commercials that coyly avoided urging a vote for or against a particular candidate but that nevertheless unmistakably conveyed that message. The difficulty with these ads was that they offered an easy way to evade campaign finance rules, including the long-standing ban on using corporate and union funds to influence elections.

Congress's solution was to carve out a time frame -- 30 days before a primary and 60 days before a general election -- during which advertising that mentions a candidate for federal office cannot be paid for directly with corporate or union funds. The organizations may pay for such ads through political action committees, but PAC money is harder to raise.

Congress recognized in passing the restriction, as the Supreme Court did in upholding it, that the provision might squelch some genuine issue ads designed to influence the legislative process. The justices will confront that quandary in a case to be argued today involving an ad run in 2004 by Wisconsin Right to Life, which was seeking to defeat Sen. Russell Feingold (D-Wis.). The ad criticized an unnamed "group of senators" for filibustering President Bush's judicial nominees and ended by urging viewers to call Sens. Feingold and Herb Kohl (D-Wis.), who was not up for reelection, "and tell them to oppose the filibuster."

On its face, this looks like inoffensive speech on an issue of public importance, not the barely disguised campaign ads -- commercials that are "intended to influence the voters' decisions and have that effect," in the court's words -- that Congress was trying to control. At the same time, Wisconsin Right to Life was targeting Mr. Feingold. "Send Feingold Packing!" was among its "top election priorities"; Mr. Feingold's position on filibusters was a central issue for the group, and it chose to run the filibuster ads in the days leading up to the election, not when the fight was peaking in the Senate.

In deciding this hard case, the court needs to avoid making bad law in any number of ways. It should not require judges to blind themselves to the obvious context in which these ads are run, but neither should it invite open-ended judicial inquiry into the motives of those who want to speak on public issues. If it finds that the ad in this case does not amount to "the functional equivalent of express advocacy" of a candidate's election or defeat, it needs to do so in a way that will not open the floodgates for a new wave of sham ads.

Most important, it's critical that the newly constituted court -- Justice Sandra Day O'Connor was part of the five-justice majority that upheld the provision -- not reverse or undermine its common-sense holding of just three terms ago. Then, the court found that Congress, in its effort to combat "the corrosive and distorting effects" of unregulated corporate money in elections, wasn't powerless to act in the face of campaign ads that simply avoided certain "magic words." Now, the advocates who opposed the provision in the first place are urging the court to revisit that holding. For the court to accept that invitation, either by explicitly overruling itself or through language that would have the same effect, would be an enormous mistake, as damaging to the integrity of the court as it would be to the electoral process.