Supreme Court Urged to Lift Political Ad Restrictions

By Randy Hall | July 7, 2008 | 8:32pm EDT

( - With an eye on the 2008 elections, a number of groups from across the political spectrum are asking the U.S. Supreme Court to overturn a ban on organizations airing issue advertisements on TV or radio 30 days before a primary and 60 days before a general election.

"The work of the government does not cease in the days leading up to an election, and those who seek to comment on key political and cultural issues should not be silenced during that period," Jay Sekulow, chief counsel of the conservative American Center for Law and Justice (ACLJ), said in a news release.

Moreover, he said, "citizens enjoy a fundamental right to petition for a redress of grievances. To prohibit the use of genuine issue advertisements by grassroots lobbying organizations is not only wrong, but it also violates that sound constitutional principle.

"The Supreme Court has an important opportunity to end this censorship and should do so without hesitation," he added.

Sekulow has filed an amicus brief on behalf of the ACLJ and Focus on the Family, asking the high court to lift the blackout periods instituted as part of the "McCain-Feingold" Bipartisan Campaign Reform Act of 2002 (BCRA), which has faced court challenges since it was signed into law five years ago.

The document was filed regarding the consolidated cases FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, which are slated to go before the Supreme Court on Wednesday, April 25.

The controversy centers on a series of TV ads that the pro-life group sought to run before the 2004 elections, encouraging state residents to urge Wisconsin's two U.S. senators to oppose a filibuster of President Bush's judicial nominees.

Because the ads would have been paid for in part with corporate funds and because they referred by name to Sen. Russ Feingold (D-Wis.) - who was running for re-election at the time - the Federal Elections Commission (FEC) contends they were illegal under the BCRA.

Another conservative advocacy group that has filed a brief in this case is Citizens United, which noted in a news release of its own Monday that the First Amendment was ratified "to keep Congress's hands off the political process."

"With the appointment of two new justices since the Supreme Court ruled on this law three years ago, we are hopeful for a more favorable outcome this time," said the group's president, David Bossie.

As Cybercast News Service previously reported, the Supreme Court ruled on Dec. 10, 2003, that the section of the law prohibiting minors under 18 years of age from making monetary contributions to political campaigns of their choice was unconstitutional.

However, the court upheld the measure's ban on advocacy advertising.

Bossie added on Monday that "McCain-Feingold is such a bad piece of legislation that it has made allies out of adversaries like Wisconsin Right to Life and the ACLU, in a true battle over free speech."

On March 21, the ACLU submitted its own brief that noted discussions on civil liberties issues "are often most urgent, and the public most engaged, in the period preceding elections when crucial legislative votes are frequently scheduled."

But under the BCRA, "the ACLU is presumptively violating the law if it broadcasts any ad during a defined pre-election period that mentions the name of a federal candidate," the document stated.

Therefore, the Supreme Court's decision in this case "will have a substantial impact on the free speech rights of the ACLU and its members," the brief added.

Deborah Goldberg, director of the Democracy Program at the Brennan Center for Justice, told Cybercast News Service that she views the case as the latest round of "gamesmanship" regarding the campaign finance reform law. The organization has filed a brief with the court in support of the law.

During the first challenge before the high court, she said, "the FEC was playing games with the court and trying to get the justices to say there could be no other challenge to BCRA, which as a First Amendment matter does not make any sense from our point of view."

"This time around, Wisconsin Right to Life and its supporters are playing games with the court," Goldberg said.

"The rule they're asking the court to adopt is so broad that if the justices granted an exception under the argument that's being offered, they would actually be finding the provisions unconstitutional after just upholding them three years ago," she said.

James Bopp, Jr., lead counsel for the pro-life organization, disagreed. "While this case involves grassroots lobbying ads that Wisconsin Right to Life was deprived of running in 2004, it provides an opportunity for the U.S. Supreme Court to state a test under which such ads can safely be run in the future," he said.

Bopp added that a ruling in this case is important for another reason. "Incumbent politicians should not be able to shield themselves from lobbying about upcoming votes in Congress through campaign finance regulations," he argued.

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