Campaign funding rule before Supreme Court

Political campaign officials and election lawyers will be watching closely today when the Supreme Court takes up a case to decide whether more corporate and union-funded ads can be broadcast before next year’s elections.

At issue is a provision in the McCain-Feingold Act that bans the use of corporate or union money to pay for radio or TV ads that mention a candidate just before the election.

The Supreme Court has upheld this ban in principle, but on a 5-4 vote, with Justice Sandra Day O’Connor in the majority.

Last year, the justices agreed to hear a new and more specific free-speech challenge to this ban, and President Bush’s two appointees -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- could tip the balance against the law.

That’s why experts in election law predict the court will open the door to at least some corporate-funded ads.

“This is a test case for Roberts and Alito. And the real question is how broad they will go” in allowing more election-year ads, said Michael Toner, former chairman of the Federal Election Commission.

“This case is a sleeper. It has the potential to drive a hole through McCain-Feingold,” said Richard L. Hasen, an election-law expert at Loyola Law School in Los Angeles. “We could be back to where we were with corporations and unions sponsoring election-related ads.”

In the 1990s, the airwaves were filled during election years with ads that advised voters to “send a message” to Candidate X. These were dubbed “issue ads” because they did not advise listeners to “vote for Smith” or to “defeat Jones.”

Since early in the 20th century, it has been illegal for corporations to fund candidates or support their campaigns. After World War II, Congress extended this prohibition to labor unions.

By the early 1990s, however, election lawyers realized their corporate and union clients could get around this prohibition if they sponsored broadcast ads that did not directly urge a particular vote. The insurance and drug industries, among others, poured money into election-year ads that advised voters what to think about a candidate.

The McCain-Feingold Act was supposed to close this loophole. Corporations and unions were told they could not run broadcast ads that mentioned a candidate 30 days before the primary vote or within 60 days of the general election.

James Bopp Jr., a free-speech advocate and counsel to the National Right to Life Committee, said this broadcast ban should be relaxed or struck down. Shortly after the high court upheld the law in 2003, Bopp sued to challenge it again on behalf of Wisconsin Right to Life.

The antiabortion group had proposed to fund radio ads in the fall of 2004 that faulted the state’s Democratic senators for using the “filibuster delay tactic” to block Bush’s court nominees. “Contact Sens. [Russell D.] Feingold and [Herb] Kohl and tell them to oppose the filibuster,” the ad advised.

Because the Wisconsin group was incorporated and received corporate donations, and because Feingold was running for reelection, the ads were banned. Bopp argues that “grass-roots lobbying” should be freed from the ban.

The justices will hear arguments today in Federal Election Commission vs. WRTL, and Bopp is expected to prevail. But most campaign lawyers will be waiting for the opinion in June to see whether the broadcast ban will be narrowed or repealed.

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david.savage@latimes.com