WASHINGTON Free speech advocates recently gained an important victory in their support of advertising on legislative issues during election campaigns.
A special three-judge panel ruled Dec. 21 in favor of a pro-life organization that paid for issue ads during the 2004 election, saying such advertising does not violate a campaign finance reform law. The panel, which consisted of an appeals court judge and two federal judges in the District of Columbia circuit, voted 2-1 to uphold Wisconsin Right to Life's challenge to part of the 2002 Bipartisan Campaign Reform Act. The law is commonly referred to as "McCain-Feingold" for its prime Senate sponsors, John McCain, R.-Ariz., and Russell Feingold, D.-Wis.
The broadcast ads by the pro-life organization did not seek to influence an election and were "neither express advocacy nor its functional equivalent," the panel said in its decision. The judges also ruled the federal government did not have a "compelling interest" that justified burdening the right-to-life group's free speech rights.
"This is a victory for the right of the people to lobby their members of Congress on upcoming votes even if there is a pending election," said James Bopp, National Right to Life Committee general counsel who represented the Wisconsin group. "This grassroots lobbying is simply self-government at work, which is protected by the First Amendment."
The contested provision of the campaign finance law bars labor unions and corporations from including a candidate's name in ads 30 days before a primary election and 60 days prior to a general election. The provision has been applied to non-profit advocacy organizations such as Wisconsin Right to Life.
The pro-life organization produced radio and television ads in 2004 urging citizens to ask Wisconsin's senators, Feingold and Herb Kohl, to oppose filibusters of President Bush's judicial nominees. Feingold, a chief sponsor of the campaign finance legislation, was running for re-election.
The ads, however, did not mention the election and did not refer to either senator's position on filibusters or his previous votes on judicial nominees. The campaign finance law still applied, however, and Wisconsin Right to Life pulled its ads and filed a lawsuit.
The three-judge panel that ruled in favor of the Wisconsin group had previously decided against it in 2005 based on the Supreme Court's support of the campaign finance law in a 2003 opinion. When the pro-life case reached the high court in January 2006, however, the justices vacated the three-judge panel's judgment and returned the case for reconsideration.
The Supreme Court said the lower court had "misinterpreted the relevance" of part of its decision, explaining it upheld the law "against a facial challenge" but "did not purport to resolve future as-applied challenges." The Wisconsin Right to Life case is an "as-applied challenge."
The case could return to the Supreme Court for a final determination.
In its most recent ruling, the panel's majority limited its consideration of the ads' constitutionality to the ads' language and rejected a call to weigh the pro-life organization's motive.
"[I]t appears to this court that the judiciary, in conducting First Amendment analysis, should not be in the business of trying to read any speaker's mind," federal judge Richard Leon wrote for the majority.
Appeals court judge David Sentelle joined Leon in the decision, while federal judge Richard Roberts dissented. Leon was nominated by President George W. Bush, Sentelle by President Reagan and Roberts by President Clinton.
The D.C. circuit handled the case because Congress gave it jurisdiction over constitutional challenges to the campaign finance law, the panel said.
The case is Wisconsin Right to Life v. Federal Election Commission and McCain.