Justices to Consider Finance Law Limits

By Robert Barnes and Matthew Mosk
Washington Post Staff Writers
Wednesday, April 25, 2007

The Supreme Court will consider today for the third time in four years Congress's landmark effort to regulate campaign finance, and the outcome could have a major impact on the role businesses, unions and special interests play in the 2008 elections.

The court in 2003 upheld the overall constitutionality of the Bipartisan Campaign Reform Act -- commonly known as the McCain-Feingold law -- but today will hear a challenge that its restrictions unfairly limit the right to lobby Congress on specific issues.

Restricting groups from using their general funds to run "issue ads" that name candidates before an election -- proponents of the law said they amounted to thinly disguised attacks -- was one of the major components of the act.

A decision to loosen the restrictions "could have a significant impact on the 2008 presidential election, depending on how broadly" the court rules, said former Federal Election Commission chairman Michael Toner.

It will also shed light on the new court led by Chief Justice John G. Roberts and its inclination to abide by previous rulings -- in this case, the constitutionality of McCain-Feingold was upheld 5 to 4.

"It's a very important test for where Chief Justice Roberts and Justice [Samuel A.] Alito stand on campaign finance cases," Toner said. Alito replaced Sandra Day O'Connor, who was in the majority four years ago. Roberts succeeded the late William H. Rehnquist, who was in the minority.

The law forbids almost all corporate entities -- including labor unions, the U.S. Chamber of Commerce and the National Rifle Association, all of whom have intervened in the case -- from using their general treasuries in the closing weeks of a campaign to fund ads that name specific federal candidates. Congressional sponsors said it was the most practical way to stop "sham ads" that circumvented restrictions on corporate spending.

The groups could still pay for ads from their more financially limited political action committees, but that is a more difficult process, the groups say.

"That would be reducing the NRA's voice to a whisper, and a whisper nowhere close to commensurate with the collective voice of its members," said Charles J. Cooper, the group's attorney.

That voice was displayed forcefully in the 2000 presidential election, when the NRA blanketed the nation's airwaves with $25 million in ads attacking Democrat Al Gore's views on gun rights.

In one, NRA executive Wayne LaPierre looked into the camera and asked: "Did you know that right now in federal court, Al Gore's Justice Department is arguing the Second Amendment gives you no right to own any firearm? No handgun. No shotgun."

The NRA was hardly alone. Scores of corporate- and labor-funded groups easily maneuvered around restrictions on their political activities, spending millions on deftly worded commercials that did not "express advocacy" for a candidate but were in fact intended to sway an election.

Congress said lawyers and political consultants found a way around any restrictions they placed on issue ads, and so said corporate money could not be used on "electioneering communications" -- ads that mentioned a candidate before an election and were aimed at the relevant electorate.

"That clear and administrable test was deemed necessary to target the principal means by which the pre-BCRA restrictions on corporate electoral advocacy were evaded," said a brief to court from Solicitor General Paul A. Clement, who represents the FEC in the case.

But AFL-CIO attorney Laurence E. Gold called the restriction "a minefield," and said he found it "deeply troubling" that the union is "prohibited by a criminal statute from uttering the name of a member of Congress, just because it happens to be close to an election."

Late last year, the federal appeals court here in effect agreed. It looked at the specifics of ads generated to run just before the 2004 election by Wisconsin Right to Life that mentioned Sen. Russell Feingold (D-Wis.), and concluded they were genuine issue ads that should not be subject to the electioneering standards.

The FEC and sponsors of the campaign finance act -- minus Feingold, who is sitting out the case -- said the court erred by not looking at context: The antiabortion group had made defeating Feingold a priority, its political action committee had run ads attacking the senator, and its issue ad directed viewers not to Feingold's office but to a Web site that was highly critical of him.

James Bopp Jr., the attorney who will be arguing the case for Wisconsin Right to Life, is a persistent critic of the act and has filed numerous challenges. He said he is merely looking to the court to fulfill a promise of its 2003 ruling. It said that a "vast majority" of the issue ads were aimed at swaying an election; that means some that were intended to influence Congress still remain, he said.

"All we are asking for is to see what the court said be given meaning -- that there are genuine issue ads that should be protected," Bopp said.

© 2007 The Washington Post Company