At issue is a section of the 2002 statute that imposes a blackout period before elections on television advertisements that meet the law’s definition of “electioneering communications” and that are paid for from the general treasuries of corporations or labor unions.
The question is how to reconcile that provision with the free-speech rights of groups that say they are engaged in grass-roots lobbying, the sort of genuine issue advertising the First Amendment protects.
The court heard the same case a year ago, shortly before Justice Samuel A. Alito Jr. took his seat last January. Faced with the prospect of a 4-to-4 deadlock in the absence of Justice Sandra Day O’Connor, who was days away from retirement and would not have been able to participate in a decision, the court then sent the case back to the lower court.
While that move postponed the court’s encounter with the Bipartisan Campaign Reform Act, as the McCain-Feingold law is formally known, an eventual encounter was inevitable because Congress, in passing the law, made Supreme Court review mandatory.
The plaintiff is a Wisconsin anti-abortion group that in 2004 sought to run three television commercials criticizing a Senate filibuster against President Bush’s judicial nominees and urging viewers to ask the state’s two senators to permit the nominations to come to a vote.
One of the senators, Russell D. Feingold, was up for re-election; the other, Herb Kohl, was not. The advertisements said nothing about voting for or against either man. Advised by the Federal Election Commission that the television spots would be barred as electioneering communications during the 60 days before the November election, the group, Wisconsin Right to Life Inc., filed a lawsuit intended to test the provision’s constitutionality.
A special three-judge Federal District Court here at first turned back the challenge under the Supreme Court’s ruling in 2003, which by a 5-to-4 vote upheld all major provisions of the McCain-Feingold law against a variety of challenges. But in their ruling last January, which was unanimous and unsigned, the justices said the district court had misinterpreted the 2003 decision as a blanket endorsement of the law.
The court said it had not meant to foreclose a finding that the electioneering-communication provision, which imposes a blackout 30 days before a primary and 60 days before a general election, might be found unconstitutional in particular applications.
That was a surprise to the Federal Election Commission and many election lawyers, who had regarded the constitutionality of the provision as settled. In a 2-to-1 decision issued on Dec. 21, the district court ruled that the statute’s application to the Wisconsin Right to Life television spots would indeed be unconstitutional.
Both the Federal Election Commission and several Congressional supporters of the law, including Senator John McCain, the Arizona Republican who was one of the chief sponsors, filed expedited appeals from that ruling. The federal agency said the district court’s decision was based on a “seriously flawed” analysis that would undermine “a critical component of the campaign-finance reform that Congress enacted” and that the Supreme Court had declared to be constitutional on its face.
The election commission did suggest that the case might now be moot, a finding that the Supreme Court is free to make after it hears the argument in late April. Federal courts can retain jurisdiction over disputes that they deem moot but “capable of repetition,” a plausible description of the Wisconsin Right to Life case because the group’s lawyer, James Bopp Jr., has brought a number of such cases and is committed to continuing his challenge.
“Politicians should not be able to use campaign finance laws like McCain-Feingold to prohibit citizen groups from engaging in grass-roots lobbying,” Mr. Bopp said.
The basic argument in the cases — Federal Election Commission v. Wisconsin Right to Life Inc., No. 06-969; and McCain v. Wisconsin Right to Life Inc., No. 06-970 — is over how the district court analyzed the advertisements in finding that they were genuine issue ads rather than thinly veiled campaign commercials.
The majority said that because judges “should not be in the business of trying to read any speaker’s mind,” courts should limit their analysis to “language within the four corners” of a commercial. Noting that the ads did not “promote, attack, support or oppose” any candidate, the court said it would accept Wisconsin Right to Life’s assertion that the ads were not “intended to influence the voters’ decisions” and so were not subject to the blackout period.
The dissenting judge said that the only way to separate a genuine issue ad from a “sham” was to examine the advertisement’s “purpose and effect” in its full context.
Justice Alito may well be in a position to determine the outcome, or perhaps even the course of federal campaign regulation if he departs from Justice O’Connor’s across-the-board support of the McCain-Feingold law. Chief Justice John G. Roberts Jr. is not in that position, because his predecessor, Chief Justice William H. Rehnquist, was one of the four dissenters from the court’s 2003 decision upholding the law.
Among other cases the court accepted on Friday was a challenge by two governments, those of India and Mongolia, to New York City’s effort to collect property taxes on the portions of their United Nations missions that are used to house staff members.
The question in the case — Permanent Mission of India v. New York, No. 06-134 — is whether the city’s suit to collect the taxes, some $18 million dating from 1981, should have been barred by sovereign immunity.