The Supreme Court signaled Wednesday that it was likely to permit a return to broadcast ads next election season that tell voters to “contact” a candidate and “send him a message.”
These were known as “issue ads” by their sponsors, but most everyone else understood they were intended to help or hurt a candidate running for federal office.
Federal law has long prohibited corporations from directly supporting candidates.
When it passed the McCain-Feingold Act in 2002, Congress extended that prohibition to also ban corporations and unions from funding preelection broadcast ads that mentioned a candidate for office.
This ban was intended to stop “issue ads” sponsored by the insurance and drug industries, among others, that flooded the airwaves in the weeks before the election. The limited broadcast ban goes into effect 30 days before a state primary election involving candidates for Congress or president. It also covers the 60 days before the general election in November.
Though the Supreme Court in 2003 cleared the way for the law to go into effect on a 5-4 vote, the justices heard a new, targeted challenge to it on Wednesday.
It came from a Wisconsin antiabortion group that had sought to run radio ads in 2004 that faulted the state’s two Democratic senators for supporting filibusters of President Bush’s judicial nominees.
“Contact Sens. [Russell D.] Feingold and [Herb] Kohl,” the ad said. Besides co-sponsoring the congressional ban on such ads, Feingold was then running for reelection.
James Bopp Jr., a lawyer for the Wisconsin Right to Life Committee, urged the court to either strike down the preelection broadcast ban entirely, or to permit an exemption for “grass-roots lobbying.”
Though a nonprofit, the Wisconsin group is incorporated, and it receives donations from profit-making companies.
Bopp argued the 1st Amendment protects the right of groups such as his to lobby lawmakers on issues.
“If we agree with you in this case, goodbye McCain-Feingold,” interjected Justice Stephen G. Breyer. He said corporate groups would see such a ruling as giving a green light to preelection broadcasts that are designed to aid or undercut a candidate.
But based on their comments Wednesday and their past decisions, a five-member majority is likely to side with the challengers and allow at least some corporate groups to pay for preelection radio and TV ads that speak of candidates.
Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy have said the McCain-Feingold Act should be struck down on free-speech grounds, and they are likely to be joined by Bush’s appointees: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Roberts, however, said he was not convinced the broadcast ban should be struck down entirely.
Instead, he asked how advocacy groups could be exempted from it so they could sponsor ads that focus on issues, not candidates.
Bopp said the court, at minimum, should permit ads that focus on issues that were pending before Congress.
The justices will meet behind closed doors to vote on the case, Wisconsin Right to Life vs. Federal Election Commission, and they will issue a ruling by the end of June.