Supreme Court protects issue ads


WASHINGTON — The Supreme Court invalidated June 25 a section of a campaign finance reform law that barred issue ads immediately before federal elections.

The justices ruled 5-4 against a portion of a 2002 measure that prohibited labor unions and corporations from including a candidate's name in broadcast advertisements 30 days before a primary election and 60 days before a general election — even if a public policy issue were the subject and the election were not mentioned in the ads. The provision also had been applied to nonprofit advocacy organizations.

In other opinions released June 25:

• The high court ruled in a 5-4 decision that taxpayers do not have legal standing to challenge President Bush's faith-based initiative, since it was not established or specifically funded by Congress.

• The justices voted 5-4 in support of a public school principal's right to confiscate a student banner that said "Bong Hits for Jesus" because of concern it promoted illegal drug use.

The voting was the same in all three decisions: In the majority were Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito; in the minority were Associates John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The campaign finance ruling provided a victory for Wisconsin Right to Life (WRTL) in its challenge of a portion of the Bipartisan Campaign Reform Act, commonly referred to as McCain-Feingold. The chief Senate sponsors of the law were Sens. John McCain, R.-Ariz., and Russell Feingold, D.-Wis.

WRTL which had paid for ads in 2004 asking citizens to urge the state's U.S. senators, Feingold and Herb Kohl, to oppose filibusters of Bush's judicial nominees. The ads did not mention the election and did not refer to either senator's position on filibusters or his previous votes on judicial nominees. The ads were pulled after three weeks on radio and two weeks on television, when the 30-day deadline before the primary was reached. Feingold was up for re-election that year. WRTL sued the Federal Election Commission, as a result.

Writing for the majority, Roberts said the law is unconstitutional in the case of these ads. The speech in question in the ads "is not the 'functional equivalent' of express campaign speech," Roberts wrote, quoting a phrase from a 2003 Supreme Court opinion upholding the McCain-Feingold measure.

The chief justice said the earlier high court ruling need not be rescinded, adding, "But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban ... we give the benefit of the doubt to speech, not censorship. The First Amendment's command that 'Congress shall make no law ... abridging the freedom of speech' demands at least that."

Pro-life and other advocacy organizations applauded the decision.

It is "a tremendous victory for freedom of speech and helps to restore that most basic of constitutional guarantees, and that is the right of the citizens to speak their mind and convictions," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.

James Bopp, WRTL's lead lawyer, said in a written release the court had "rejected the audacious attempt by Senator McCain and his allies to overturn the First Amendment's protection and empower incumbent politicians with the power to ban public criticism –- even ban ads that contain no such criticism. Grassroots lobbying is important to citizens' involvement in their own government, and it has nothing to do with elections."

According to The Hill newspaper, McCain said, "It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target" candidates shortly before an election. He said it is significant to realize the ruling does not harm the thrust of the legislation, "which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns."

Scalia, Kennedy and Thomas wanted to go further than Roberts and Alito. While they agreed in the judgment, a concurring opinion written by Scalia and signed by the other two endorsed overruling the applicable section in McCain-Feingold.

Writing in dissent, Souter said the majority had, in essence, rescinded that part of the law. He said the high court, as well as the United States, "loses when important precedent is overruled without good reason."

A diversity of organizations filed friend-of-the-court briefs in support of WRTL, including the American Center for Law and Justice, ACLU, AFL-CIO, Chamber of Commerce, Coalition of Public Charities, Family Research Council, National Association of Realtors and National Rifle Association.

The case reached the high court after a special three-judge panel in the District of Columbia ruled in a 2-1 December decision in favor of WRTL. The FEC and McCain appealed the ruling. The two cases -– FEC v. WRTL and McCain v. WRTL -– were consolidated for the Supreme Court's consideration.

In its opinion on the White House's faith-based initiative, the court ruled that a suit brought by the Freedom From Religion Foundation (FFRF) could not proceed. The program, which was inaugurated by Bush after he took office in 2001, is designed to free religious organizations to seek government grants for the provision of social services to the needy. The FFRF, which describes itself as the largest group of atheists and agnostics in North America, was especially concerned about the White House conferences that educate faith-based and other organizations on applying for federal grants.

The high court's doctrine for more than 80 years has been that taxpayers may not challenge the federal government's use of funds. The justices made an exception in a 1968 case, Flast v. Cohen, ruling that taxpayers may sue in establishment clause cases involving Congress' taxing and spending authority.

Writing for the majority, Alito said spending on the faith-based initiative did not involve Congress. "Those expenditures resulted from executive discretion, not congressional action," he wrote. "We have never found taxpayer standing under such circumstances."

Bush commended the opinion, saying in a written statement it "is a win for the thousands of community and faith-based nonprofits all across the country that have partnered with government at all levels to serve their neighbors. Most importantly, it is a win for the many whose lives have been lifted by the caring touch and compassionate hearts of these organizations."

The ERLC's Land said the decision, like the one on issue ads, "is once again a reminder that elections have consequences. Sam Alito provided the fifth vote. These decisions would have gone completely the other way had John Kerry been elected president in 2004."

By his nomination of Roberts and Alito, Bush "has had an enormous impact on our right to participate in the public policy process and America's right to end discrimination against faith-based groups in government programs," Land told Baptist Press.

Bush chose Roberts to replace Chief Justice William Rehnquist after the latter's death in 2005 and Alito to replace retiring Associate Justice Sandra Day O'Connor later the same year.

Among those signing on to friend-of-the-court briefs in support of the FFRF were the Baptist Joint Committee for Religious Liberty, Americans United for Separation of Church and State, American Atheists Inc., ACLU and People for the American Way.

The Christian Legal Society, ACLJ and 12 states were among those filing briefs on the government's side.

The opinion came in Hein v. FFRF. Jay Hein is director of the White House's Office of Faith-based and Community Initiatives.

The "Bong Hits for Jesus" case involved the 2002 actions of Joseph Frederick, a student at Juneau-Douglas High School in Alaska. Students were released from school to observe the relay of the torch on the way to the Winter Olympics in Salt Lake City. As the torch passed, Frederick and others unfurled the 14-foot sign. Principal Deborah Morse, concerned about the reference to marijuana use in the words "bong hits," tore down the sign and suspended Frederick for 10 days.

Roberts wrote in his majority opinion that Morse's action demonstrated a reasonable conclusion the sign "promoted illegal drug use — in violation of established school policy — and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

Several Christian organizations that defend religious freedom filed friend-of-the-court briefs on behalf of the student. They did so out of concern that a ruling in favor of the school's right to restrict speech could harm the religious and free-expression rights of Christians and other religious students in the future. Among the organizations filing briefs in support of Frederick were Alliance Defense Fund, The Rutherford Institute, ACLJ and CLS.

The ruling came in Morse v. Frederick.

All three opinions are available online at www.supremecourtus.gov.