The Supreme Court on Monday handed President Bush and the Republican Party two victories by clearing the way for corporate-funded broadcast ads before elections and by shielding the White House’s “faith-based initiative” from challenge in the courts.
Both came in 5-4 rulings by the conservative majority led by Chief Justice John G. Roberts Jr.
The first decision will allow corporate and union money to play a bigger role in political campaigns.
Five years ago, Congress passed the McCain-Feingold Act, part of which banned preelection ads that mentioned a candidate’s name if they were paid for with corporate or union money. The court’s decision Monday went most of the way to striking down that ban.
The ads involve “core political speech” that is protected by the 1st Amendment, Roberts said. “We give the benefit of the doubt to speech, not censorship.”
Though labor unions and their Democratic allies also will benefit from the ruling, Republicans and business interests led the challenge to the McCain-Feingold Act and its restrictions on preelection broadcast ads.
The second ruling will allow more federal money to flow to church groups and religious organizations that do charitable work or provide social services. Bush set up a special office in the White House to give seminars for “faith-based” groups to show them how to apply for federal grants.
A small Wisconsin group of atheists and agnostics argued that the program amounted to unconstitutional governmental promotion of religion. But the Supreme Court threw out the group’s lawsuit and said ordinary taxpayers lacked the legal standing to challenge such a program.
Justice Samuel A. Alito Jr. -- who, like Roberts, was appointed by Bush -- stressed that this program amounted only to officials giving speeches. It might be different, he said, if Congress had appropriated money to be funneled directly to churches or religious activities.
Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined with Roberts and Alito in both decisions. Scalia and Thomas, however, said they would have gone further in both instances. They said they would have struck down the entire McCain-Feingold Act as unconstitutional and would have ruled that taxpayers never have standing to challenge government aid to religion.
The president hailed the decision upholding his faith initiative, calling it a “win for the thousands of community and faith-based nonprofits all across the country that have partnered with the government at all levels to serve their neighbors.”
A leading advocate of church-state separation called the decision disappointing but narrow.
“Taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House,” said Barry Lynn of Americans United for Separation of Church and State.
Normally, taxpayers cannot sue to challenge government spending. For example, a taxpayer who opposes the Iraq war would not have standing to go to court and challenge this spending. But in 1968, the Supreme Court under Chief Justice Earl Warren made an exception and said taxpayers could legally challenge the government when it spent federal funds for religion.
Alito said the majority was unwilling to expand Warren’s 1968 opinion by giving taxpayers the right to challenge White House officials and the content of their speeches.
In dissent, Justice David H. Souter said the 1st Amendment forbids the government from spending any money to aid religion. The 1st Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of religion.”
The court’s opinion “closes the [courthouse] door on these taxpayers because the executive branch, not the legislative branch, causes their injury,” Souter said. “I see no basis for this distinction in either logic or precedent.”
The effect of the McCain-Feingold ruling will probably be seen and felt by TV viewers and radio listeners starting early next year. It could mean a return to the 1990s when preelection ads urged the public to “send a message” to candidate John Doe about his stand on a certain issue.
These “issue ads” were a way for corporations and unions to get around laws that barred them from funneling money into election campaigns. A century ago, Congress prohibited corporations from giving money to candidates. Unions were subjected to a similar prohibition after World War II.
But during the 1990s, these groups discovered they could give large contributions to political parties and pay for broadcast ads that could sway key races. The McCain-Feingold Act sought to close both of these loopholes. It prohibited “soft money” -- donations made to political parties rather than directly to candidates -- and it banned corporate- and union-funded ads that mentioned a candidate 60 days before a general election or 30 days before the primary election.
The Republican National Committee strongly opposed the measure. Bush reluctantly signed it into law, but questioned its constitutionality. Its opponents spanned the ideological spectrum and included the U.S. Chamber of Commerce, the AFL-CIO and the American Civil Liberties Union.
Before the 2004 elections, the Supreme Court upheld the law by a 5-4 vote, with Justice Sandra Day O’Connor in the majority.
In Monday’s ruling, the high court reversed course, with Alito casting the deciding vote. Alito succeeded O’Connor last year after she retired.
The ban on “soft money” was not challenged and is unaffected by the ruling, but the broadcast ban was badly undercut.
Roberts said broadcast ads that stopped short of urging the public to support or defeat a candidate were legal and could not be prohibited.
“The 1st Amendment requires us to err on the side of protecting political speech rather than suppressing it,” the chief justice wrote in ruling on Federal Election Commission vs. Wisconsin Right to Life.
Although Roberts and the majority said the free-flowing ads were a vital part of democracy, Justice David H. Souter and the dissenters saw a threat to democracy from the huge amounts of money flowing into politics. In the 2000 election, more than $629 million was spent on television ads related to the elections, a record, according to the Brennan Center at New York University.
“The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly,” Souter said.
Several election-law experts called Monday’s ruling a major development because it strengthened the free-speech rights of corporations.
The court’s opinion “is a major victory for those who oppose campaign finance regulation,” and it will lead to “a new proliferation of corporate- and union-funded campaigns ads in the 2008 election season,” said Richard L. Hasen, a professor at the Loyola Law School in Los Angeles.
“As a practical matter,” said Ohio State law professor Edward B. Foley, “corporations received the victory that they did not achieve in 2003" when the law was initially upheld.