I suspect that a revisit to the campaign finance law with Alito sitting will reverse their last decision.
The New York Times
January 23, 2006
Justices Ask Court to Reconsider Campaign Finance Case
By DAVID STOUT
WASHINGTON, Jan. 23 - The Supreme Court signaled a willingness today to revisit its landmark 2003 decision on the use of money in political campaigns, directing a lower court to reconsider a ruling against a Wisconsin anti-abortion group.
In a unanimous, unsigned opinion only three pages long, the justices told a three-judge federal court panel in Washington to take another look at the suit brought by the group, the Wisconsin Right to Life organization. The justices said that the 2003 decision "did not purport to resolve" all future challenges to the legislation.
The justices' decision, coming only a week after they heard the case, could indicate that the issue of campaign finance will soon be back before them as the Supreme Court goes through a period of transition.
At issue is a section of the Bipartisan Campaign Reform Act of 2002, more familiarly known as the McCain-Feingold law, after its main sponsors, Senators John S. McCain, Republican of Arizona, and Russell D. Feingold, Democrat of Wisconsin.
The law was a reaction to at least three decades worth of heated debate over how money, sometimes called "the mother's milk of politics," should be raised and spent during political campaigns. Underlying the debate were charges that money has often been a corrupting influence in the political process - and counter-arguments that restrictions on campaign spending and advertising violated First Amendment rights of free speech and association.
On Dec. 11, 2003, the Supreme Court ruled, 5 to 4, that the core of the McCain-Feingold law was constitutional. Part of the law established a new category of "electioneering communications," or television ads that refer to specific candidates for federal office and that are broadcast in the relevant market within 30 days of a primary election or 60 days of a general election.
The law specifies that corporations and labor unions may not pay for such advertisements from their general treasuries, but must instead use money from their political action committees, which are subject to limits on campaign contributions.
Wisconsin Right to Life ran ads in 2004 urging viewers to contact the state's two senators, Mr. Feingold and Herb Kohl, also a Democrat, and urge them to oppose efforts to block President Bush's nominees for federal judgeships. Not coincidentally, Mr. Feingold was running for re-election (successfully, as it turned out).
A lower federal court ruled that the ads were "electioneering," and thus subject to disclosure requirements and spending limits spelled out in the McCain-Feingold law. But Wisconsin Right to Life argued that its ads were not really "electioneering" but instead amounted to "grass-roots lobbying," and under that definition should not be subject to the same curbs as "electioneering."
When the case was argued before the Supreme Court last week, there was considerable agreement that its can be very difficult to distinguish between ads meant to lobby and ads meant to influence an election - especially since many ads try to do both.
Senator Feingold told The Milwaukee Journal Sentinel after the arguments that he hoped the Supreme Court would rule against the right-to-life group. "The court cannot uphold the challenge brought by Wisconsin right to Life without ignoring the precedent it set when it upheld the issue-ad provisions of the Bipartisan Campaign Reform Act two years ago," he said.
Richard Hasen, a professor at Loyola Law School of Los Angeles who specializes in election law, told The Associated Press that today's Supreme Court ruling "could be an important first step toward undermining" the 2003 ruling without overruling it.
Since the 2003 ruling, Chief Justice John G. Roberts Jr. has succeeded William H. Rehnquist, who voted in the minority on most provisions of the McCain-Feingold law. Justice Sandra Day O'Connor was in the majority. Now that she is retiring, to be succeeded by Judge Samuel A. Alito Jr., if he is confirmed this week, there is likely to be intense speculation on what might happen if and when the McCain-Feingold law goes before the tribunal again.
James Bopp Jr., the lawyer who argued on behalf of Wisconsin Right to Life, told The A.P. he hoped the courts would move quickly "so that now, not only we will know, everyone will know what type of lobbying ads are permitted." |
