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The Supreme Court is also considering the McCain-Feingold Campaign Finance Law. That's the law that is supposed to keep at least some big money out of politics. The Court upheld this law once already, but now, opponents are challenging one particular provision. They argue that it squelches their right to do grassroots lobbying in the weeks before election day. NPR's Peter Overby reports.
PETER OVERBY, reporting:
Here is the question. Is it possible to run a TV ad about politics a month before an election and to mention an active candidate in the ad and not have it be a campaign ad? That's what Wisconsin Right to Life wanted to do in 2004. The group wanted to run this ad during campaign season. The topic was Senate democrats and their efforts to block President Bush's judicial nominees.
Unidentified Man #1: It's politics at work and it's causing gridlock. Contact Senators Feingold and Cole and tell them to oppose the filibuster. Visit befair.org.
Unidentified Man #2: Wisconsin Right to Life is responsible for the content of this advertising.
OVERBY: Senator Herb Cole was not running in 2004, but Senator Russell Feingold was. In fact, defeating him was one of Wisconsin Right to Life's two political goals that year. The other was reelecting President Bush. Barbara Lyons, director of Wisconsin Right to Life, says the ad was designed to promote grassroots lobbying, not to influence the Senate race, what the Campaign Finance Law would call an electioneering ad.
Ms. BARBARA LYONS (Director, Wisconsin Right to Life): That was really the main point of our campaign to essentially put before the public and before the courts the idea that grassroots lobbying is different from elections.
OVERBY: The ad ran in July. But in August, the Democratic Primary was coming up, and under the Campaign Finance Law, Wisconsin Right to Life had to take the ad off the air. That's because the law, which was drafted in large part by Feingold and Republican Senator John McCain, has a bright line definition for electioneering ads. Attorney Brad Phillips, representing McCain and other reform minded lawmakers in this case explains.
Mr. BRAD PHILLIPS (Attorney): If you satisfy these three objective criteria, you mention the candidate, you run the ad shortly before the election, and you run the ad in that particular candidate's state in the instance of a Senator, that ad is deemed an electioneering communication.
OVERBY: Which reflects the real world of politics, according to long time Republican consultant, Doug Bailey. He filed an Amicus brief supporting the law.
Mr. DOUG BAILEY (Republican Consultant): By definition, if you run an ad in the middle of the campaign that talks about a candidate who is on the ballot, it's going to have an impact on that campaign, it simply is.
OVERBY: McCain-Feingold actually does allow electioneering ads in the run up to an election, but not if they're financed with corporate money, and Wisconsin Right to Life is a corporation. The ads would have been legal if they had been done by Right to Life's Political Action Committee, using small non-corporate contributions subject to public disclosure. But the group says the pact didn't have enough cash. Again, Brad Phillips representing the reform advocates.
Mr. PHILLIPS: Corporations shouldn't be allowed to use money that they've amassed through the special benefits that corporations have in the business world to essentially gain an unfair advantage in the political.
OVERBY: All of which is beside the point, according to James Bopp.
Mr. JAMES BOPP (Lawyer for Wisconsin Right to Life): I think the government is just really grabbing for more regulation and more control, more prohibition on speech, and certainly, incumbent politicians like that.
OVERBY: Bopp will argue today that even though the Supreme Court has already upheld the electioneering provision once, the decision does include a footnote, opening the possibility of a different standard for issue ads, like the one by Wisconsin Right to Life. He says citizens' rights shouldn't be restricted just because of an upcoming election, especially because elections have less immediate impact than what's pending in Congress.
Mr. BOPP: What is real is the lawmaking that the government is doing right now. And so it seems to us that that is why the First Amendment included a specific protection for the right to petition your government.
OVERBY: This case doesn't split liberal versus conservative. Several prominent liberal organizations, including the AFL-CIO and the Alliance for Justice are supporting Wisconsin Right to Life. But the irony is that as originally written in 2001, McCain-Feingold wouldn't have touched Wisconsin Right to Life's electioneering ads. During Senate debate, the bill's Republican opponents threw their support to an amendment toughening up the electioneering provision. They wanted to make the bill more vulnerable to a Supreme Court challenge, as Mitch McConnell, leader of the opposition, point out after the vote.
Senator MITCH MCCONNELL (Republican Kentucky): It doesn't bother me that it now has more infirmities than it already had.
OVERBY: Now, they've lost once, but today they get another chance. Peter Overby, NPR News, Washington.
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