5-4 Supreme Court Weakens Curbs on Pre-Election TV Ads

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 26, 2007

The Supreme Court yesterday substantially weakened restrictions on the kinds of television ads that corporations and unions can finance in the days before an election, providing special interest groups with the opportunity for a far more expansive role in the 2008 elections.

Chief Justice John G. Roberts Jr. wrote the 5 to 4 decision, saying the McCain-Feingold campaign finance act's prohibition against the use of a candidate's name in such ads in the days before an election was an unconstitutional infringement on the groups' rights to advocate on issues.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Roberts wrote. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

It was a rare decision that united the U.S. Chamber of Commerce and the AFL-CIO in praise -- it is unlikely that the groups will use the court's more lenient standards to advocate for the same causes.

"This could reorder the advertising strategies of corporate America and labor unions in the 2008 elections," said former Federal Election Commission chairman Michael E. Toner.

Critics said the decision will encourage a financial arms race between well-heeled special interest groups.

"This is a big win for big money," League of Women Voters President Mary G. Wilson said in a statement. "Chief Justice Roberts has reopened the door to corruption."

The decision clearly illustrated how the addition of Roberts and Justice Samuel A. Alito Jr. has shifted the balance of a court closely divided on social issues. The five-member majority that also includes Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy prevailed in each of the closely divided rulings handed down yesterday.

The court in two other cases restricted student rights to free speech and ruled that a suit brought by taxpayers against President Bush's office of faith-based initiatives could not go forward.

Roberts took a different view of First Amendment protections in the student speech decision, which he also wrote. He said a principal was right to take a student's banner proclaiming "Bong Hits 4 Jesus." Roberts said that schools do not have to tolerate speech advocating illegal drug use and that the question "hardly justifies sounding the First Amendment bugle."

The campaign finance case brought the fourth dissent read from the bench this year by a member of the court's liberal wing, which is eager to draw attention to what it says is a majority too willing to jettison the court's past rulings.

"The court (and, I think, the country) loses when important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here," Justice David H. Souter wrote for the other dissenters in the case, Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

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