Campaign finance law challenged

WASHINGTON -- Supreme Court justices yesterday expressed serious concerns about the legality of key portions of the McCain-Feingold Act, raising the possibility that the court may strike down or sharply limit part of the landmark campaign-finance law heading into the 2008 presidential election.

The McCain-Feingold Act, which was hailed as a major effort to control the influence of money in politics when President Bush signed it into law in 2002, forbids corporations and labor unions from buying advertisements mentioning a political candidate's name within 60 days of a federal election.

In oral arguments yesterday in a case challenging the law, the court's more conservative justices strongly suggested that the ban violates free-speech rights.

"This is the First Amendment," Justice Antonin Scalia told lawyers defending the McCain-Feingold Act. "We don't make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line. . . . And you're not giving us any."

Scalia has long maintained that many types of restrictions on campaign financing violate the Constitution; in previous opinions, however, he has been in the minority when the cases were decided. In 2003, for example, the court upheld the first challenge to the McCain-Feingold Act by a 5-to-4 vote, with Justice Sandra Day O'Connor joining the court's four liberals in the majority.

But the moderate O'Connor has retired, replaced by Justice Samuel A. Alito Jr., a more conservative judge. If the new court rolls back the McCain-Feingold Act, corporations and labor unions will be able to buy political ads more freely during the 2008 election. A decision is expected by June.

Yesterday's case arose after an antiabortion group, Wisconsin Right to Life, tried to buy airtime for a television ad during the run-up to the 2004 election. The group is considered a corporation under federal election law.

The ad criticized senators who were blocking a vote on Bush's federal judicial nominees, urging viewers to call Senator Russell Feingold -- the Wisconsin Democrat who was a sponsor of the McCain-Feingold Act and who was up for reelection at the time -- about the issue. The ad also touted a website that explicitly criticized Feingold.

The legal dispute centers on whether the ad was a legitimate attempt to lobby the government over a policy matter or whether it was a so-called sham issue ad -- one that criticizes a candidate but avoids mentioning an upcoming election to circumvent legal limits on campaign financing.

The McCain-Feingold Act, which attempted to block sham issue ads, says groups can run "electioneering" ads only through a special Political Action Committee account. Individuals can donate a maximum of $5,000 to such a fund, and their identities must be made public in reports that are regularly filed with the Federal Election Committee.

But Wisconsin Right to Life wanted to pay for the ad using its general fund, money that can be raised without the same limits or disclosure rules. Insisting that its ad was not intended to persuade voters to defeat Feingold, the group argued that it had a First Amendment right to pay for the ad however it wanted.

A federal district court blocked the group from using its general fund to pay for the ad, and Feingold went on to win his election. But the group pushed on with its lawsuit, saying the problem of issue ads would surface again .

During yesterday's hearing, the four justices who voted to support the McCain-Feingold Act in 2003 criticized the new challenge to it. Justice Ruth Bader Ginsburg suggested the ad was intended to hurt Feingold's reelection bid, noting that Wisconsin Right to Life had "strongly opposed Feingold every time he ran for election."

Justice Stephen G. Breyer added: "Why should this court, only a year or two after it upholds McCain-Feingold, accept a position that . . . overturns that case?"

Scalia, however, suggested that it might be a good idea to reverse course.

"Maybe we were wrong last time," he said.

With no signs that any of the seven justices who voted on the issue in 2003 have changed their minds, attention turned to the court's two new members, Alito and Chief Justice John G. Roberts Jr. Like his predecessor, the late chief justice William H. Rehnquist , Roberts seemed skeptical of the McCain-Feingold Act, which he characterized as a government attempt to censor speech.

The apparent 4-to-4 split means Alito would probably cast the deciding vote. Ironically, Alito became a justice early last year only after some Democrats, led by Senators John F. Kerry and Edward M. Kennedy of Massachusetts, tried but failed to block a vote on his confirmation, the same legislative tactic Wisconsin Right to Life attacked in its 2004 ads.

During the arguments, attorney James Bopp , representing Wisconsin Right to Life, reminded Alito about the threat to his nomination. He argued that political issues sometimes move quickly, leaving little time for a lengthy court review of proposed issue ads that must air on short notice to make a difference.

"Things pop up, like the filibuster of a Supreme Court nominee in January of 2006," Bopp said.

Alito, who asked only a few questions, did not respond to Bopp's comment.