High court to review campaign finance law

The Supreme Court set the stage Friday for striking down a part of the McCain-Feingold campaign finance law that bars the broadcast of corporate and union-funded ads just prior to an election.

Three years ago, the justices narrowly upheld the McCain-Feingold Act of 2002 and its rule against corporate-funded broadcast ads, which was adopted to prevent powerful interests from using their money to sway elections in the final weeks of a campaign. The now-retired Justice Sandra Day O’Connor cast a deciding vote in favor of the law.

On Friday, the justices announced they would hear a free-speech challenge to the rule in April, this time before a court that is likely to be more skeptical of laws that restrict election-related spending.

Although advocates of campaign funding laws say they are trying to limit the influence of big money in politics, critics say the measures unconstitutionally restrict people and groups from voicing their political views.

The critics include Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. They voted to strike down the McCain-Feingold Act as unconstitutional. If Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. join them, they will have a majority to limit or strike the rule against corporate-funded broadcast ads.

That would open the door to more special interest ads on radio and TV prior to the 2008 primary and general elections.

For decades, corporations and unions have not been allowed to use their money to fund candidates or their campaigns. However, nothing prevents individuals, including corporate and union officers, from giving $2,000 to a candidate for federal office. They also may use their money to join with others to pay for ads for or against a candidate.

The McCain-Feingold Act specifically bans corporate and union-funded ads that mention a candidate for federal office within 30 days of the primary election or within 60 days of the general election. In upholding this rule in principle, the high court agreed with Congress that these ads are intended to influence an election, and therefore, they may be restricted because they amount to use of corporate and union money to sway an election.

But free-speech advocates have been eager to get a new challenge before the high court.

James Bopp Jr., an Indiana lawyer who represents free-speech and anti-abortion causes, brought a test case on behalf of the nonprofit Wisconsin Right to Life Inc. He proposed to run radio ads during the summer of 2004 that criticized Democratic Sens. Russell D. Feingold and Herb Kohl, both of Wisconsin, for refusing to approve all of President Bush’s pending judicial nominees. Feingold, a co-sponsor of the campaign funding law, was then seeking reelection.

The Federal Election Commission said these ads would be illegal. Bopp sued, citing the 1st Amendment and arguing these ads amounted to “grassroots lobbying” of a federal office holders, not an election ad. In December, a three-judge panel in Washington agreed with Bopp and said “genuine issue ads” are protected as free speech.

Supporters of the campaign-funding law, including Sen. John McCain (R-Ariz.), fear that if the ruling is upheld, it would open a large loophole. Though Bopp represents a small, nonprofit group, large corporate interests could broadcast ads that fault candidates for their positions on important issues.

Bopp argues that the restrictions on campaign spending allow lawmakers to shield themselves from criticism. “Politicians should not be able to use campaign finance laws, like McCain-Feingold, to prohibit citizen groups from engaging in grass roots lobbying,” he said Friday.

The justices voted to hear two appeals raising the same basic issue. They are Federal Elections Commission vs. Wisconsin Right to Life and McCain vs. Wisconsin Right to Life. The cases will be decided by late June.

david.savage@latimes.com