Justices Weigh Limits Put on Campaign Ads

Chief Justice John G. Roberts Jr. expressed doubts Tuesday about legal restrictions on political ads by outside groups as the Supreme Court took up a new challenge to the McCain-Feingold campaign finance law.

Questioning Solicitor Gen. Paul D. Clement, who was defending the law, Roberts raised a hypothetical case in which a group ran an issue ad every month. Does the ad, he asked, become illegal in the months before an election?

Clement responded that such a group could continue to run the ads if it used political action committee money to pay for them, or if it refrained from identifying a candidate by name.

Justice Antonin Scalia said that would undercut the purpose of the ad. “The point of an issue ad is to put pressure on an incumbent you want to vote your way,” he said.

At issue is a provision banning the use of corporate or union money for ads that identify federal candidates in the two months before a general election. The case involves a lawsuit by Wisconsin Right to Life, which was barred from broadcasting ads that mentioned Sen. Russell D. Feingold (D-Wis.) during his 2004 reelection campaign.

In the first challenge to how the law is working in practice, the group in 2004 sought an injunction barring the Federal Election Commission from enforcing the provision against it. But the U.S. District Court in the District of Columbia denied the request. A month later, then-Chief Justice William H. Rehnquist declined the group’s request to intervene.

The McCain-Feingold restriction was aimed at forcing groups to use regulated PAC money to pay for issue ads that were widely seen as thinly veiled election commercials. Wisconsin Right to Life says an exception should be made for “genuine issue ads” that constitute grass-roots lobbying.

The group’s commercials urged people to call Feingold and Sen. Herb Kohl (D-Wis.) and ask them to oppose Senate filibustering of President Bush’s judicial selections. Feingold co-wrote the campaign finance law with Sen. John McCain (R-Ariz.).

The Wisconsin group, which opposes legalized abortion, got a skeptical response from some justices, who said the court had settled the issue when it upheld the law on a 5-4 vote in December 2003. Scalia voted against the law in that case.