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Some Supreme Court justices seem cool to revisiting 'issue ads'
Wednesday, January 18, 2006

WASHINGTON -- Two years after upholding the McCain-Feingold campaign-reform law's limits on broadcast "issue ads" funded by unions and corporations, the Supreme Court was asked yesterday by an anti-abortion group to revisit the issue of whether the curbs violate the First Amendment.

Some justices made clear that they weren't interested.

"Most of us spent the entire summer [of 2003] reading one of the longest appellate opinions we ever saw," Justice Stephen Breyer complained to James Bopp, Jr., a lawyer representing Wisconsin Right to Life, Inc. Mr. Bopp was defending the group's right to air an advertisement about Sen. Russell Feingold, D-Wis., within 60 days of the 2004 election in which Mr. Feingold was seeking another term.

The advertisement urged Mr. Feingold and fellow Wisconsin Democratic Sen. Herb Kohl, who was not up for re-election, not to take part in filibusters of President Bush's judicial nominees.

Mr. Bopp told the court that the ads were not primarily about the election but were a form of lobbying covered by language in the First Amendment protecting the right of citizens "to petition the government for a redress of grievances."

"These ads were at the very core of what a legislative issue ad is," Mr. Bopp said, "and it was directed at both the senators, not just the one running for re-election."

"You have a very good argument," Justice Breyer told Bopp. "But it's an argument we just heard in that case."

Justice Breyer was referring to a Dec. 10, 2003, ruling in which the court by a 5-4 vote upheld key sections of the McCain-Feingold law, formally known as the Bipartisan Campaign Reform Act, including a ban on radio and television spots mentioning a candidate for re-election within two months of Election Day.

That so-called "blackout period" was designed to deal with what supporters of McCain-Feingold called "phony issue ads," which in the guise of asking viewers to contact a member of Congress about an issue actually were designed to support or oppose his re-election.

But Mr. Bopp told the court that its 2003 decision dealt only with a claim that the law's restrictions were unconstitutional "on their face," and that the court left the door open for arguments -- so-called "as applied challenges" -- that the law was being applied unconstitutionally in particular cases.

U.S. Solicitor General Paul D. Clement, representing the Bush administration, reminded the court that it had upheld McCain-Feingold only two years ago and warned the justices against blurring the "bright-line rule" they drew in that case.

But Mr. Clement was challenged by Chief Justice John G. Roberts Jr., who was not on the court when it upheld the McCain-Feingold law.

Noting that the U.S. government previously had indicated that case-by-case challenges of McCain-Feingold would still be possible, Chief Justice Roberts asked Mr. Clement if he wasn't engaging in a "classic bait and switch."

First published on January 18, 2006 at 12:00 am