Yesterday the Supreme Court heard oral arguments in Wisconsin Right to Life v. Federal Elections Commission, which challenges the abysmal McCain-Feingold campaign finance law.
A large coalition of groups, including the ACLU and AFL-CIO, filed briefs supporting WIRTL.
The legislature passed McCain-Feingold in 2002 to kill free speech before elections. It bars corporations and labor unions from broadcasting ads mentioning the name of a federal candidate 30 days before a primary and 60 days before a general election. Strangely, President Bush signed the bill into law while saying he thought it was unconstitutional. Almost all were surprised when in 2003 the Supremes upheld the law on its face.
In 2004, WIRTL attempted to run ads prodding Senate members to approve Bush judicial nominees. The ads were blocked by McCain-Feingold, and the court battle began….
WIRTL is challenging the application of McCain-Feingold. I spoke with Barbara Lyons, Executive Director of WIRTL, this morning. She attended the Supreme Court hearing yesterday and said prospects look good for some sort of victory, although it may be narrow. The decision was promised by June 30.
Senate GOP Leader Mitch McConnell also attended the hearing yesterday, having filed his own brief in support, and reported to bloggers he was “encouraged by the active and insightful questions posed by the Justices.” Noted McConnell:
Justice Alito recognized the massive breath of this provision during a presidential election year – namely a rolling ban from coast to coast during the year. Grassroots groups could never run a nationwide ad on CNN or ESPN as it would violate the law in at least one state.
Justice Scalia stated the time when ads are most persuasive to Members is during the blackout period before elections. This is when the First Amendment right to petition the government is the most powerful. These ads are about changing the minds of Members, not changing the minds of voters.
It was a very interesting session and there was substantial skepticism as to the constitutionality of the law as applied to these issue ads. As Justice Kennedy asked, “isn’t that democracy?”