Some Who Fight for McCain Are Fighting Against McCain-Feingold

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GOP Candidates Campaign in Texas

The last remaining GOP presidential hopefuls campaigned across Texas ahead of the Tuesday, March 4, 2008, primary. In the end, a Sen. John McCain (R-Ariz.) was crowned with the promise of the Republican party presidential nomination.

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Roberts's ruling said corporate- or union-financed "issue ads" prohibited by McCain's legislation were no longer totally off-limits.

"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."

Election law expert Edward B. Foley, a law professor at Ohio State University, said the case exposed vulnerabilities in McCain-Feingold. Bush's replacement of Justice Sandra Day O'Connor -- the key fifth vote in swatting away the first court challenge -- with Justice Samuel A. Alito Jr. has "absolutely'' changed the court's view of the law, he said .

One matter that will be argued before the court in April challenges what is sometimes called the "Millionaires Amendment," a provision that loosens fundraising restrictions for candidates running against wealthy, self-financed opponents.

The court should announce soon whether it will also hear the case brought by the makers of "Hillary: The Movie" who want to eliminate a provision requiring groups that finance campaign-related advertising to disclose donor names.

Fred Wertheimer, who heads the watchdog group Democracy 21, an architect of McCain-Feingold, said he recognizes that with the changes in the court's makeup, new challenges are likely. But he said he took solace in the fact that no one has yet challenged the legislation's core provision -- the soft-money ban.

Even that may change, said Bopp, who has handled many of the challenges, including the pending disclosure case. Bopp said he believes the soft-money ban is "fraught with the same problems that the rest of the law is fraught with, which is its breadth."

Bopp said he agreed to support McCain after the Arizona senator promised to appoint strict-constructionist judges who are faithful to the First Amendment.

Since McCain's emergence as the likely Republican nominee, he has faced pressure from Bopp and others to clarify his vision for future Supreme Court appointments and mollify concerns that campaign finance would become a litmus test for judicial appointments.

McCain was put on the defensive by conservative columnists who said the senator in a private meeting had questioned whether Alito was too openly conservative. McCain, who supported Alito's confirmation, denied making the statement. He told the Federalist Society he would "insist" on judicial nominees such as Roberts and Alito, who are "faithful to the Constitution" and "had a record that demonstrated that fidelity."

Foley called the comment ironic in the context of McCain's campaign finance legislation. "It occurred to me that might contribute to the undoing of his legislative legacy."

Research editor Alice Crites contributed to this report.