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High Court to Hear Case Involving Issue Ads

The John Roberts-led Supreme Court will hear its first major federal campaign finance law case this week, with lawyers for an anti-abortion rights group, Members of Congress and the Federal Election Commission battling over a cornerstone of the 2002 Bipartisan Campaign Reform act.

On Wednesday, the court’s seven veterans and its two relatively new arrivals, Chief Justice Roberts and Associate Justice Samuel Alito, will hear lawyers for Wisconsin Right to Life, the FEC, Sen. John McCain (R-Ariz.) and Reps. Christopher Shays (R-Conn.), Tammy Baldwin (D-Wis.) and Marty Meehan (D-Mass.) argue the legality of 30- and 60-day blackout periods for certain TV and radio ads before primary and general elections.

The case came about after the Wisconsin anti-abortion group filed suit against the FEC in July 2004, arguing that the ability to run the ad was protected by the First Amendment.

“There are really two centerpieces to” BCRA, said Lawrence Norton, a campaign finance lawyer at the Womble Carlyle Sandridge & Rice PLLC and the FEC’s general counsel until early 2007. “There’s the soft-money prohibition, then there is ‘electioneering communications’ provision, which was aimed at so-called sham issue ads.”

“The idea was … [that these ads] basically were a back door for corporate money to fund electioneering activity,” Norton continued.

Under BCRA’s “electioneering communications” provisions, nonprofit corporate entities such as Wisconsin Right to Life, the parent organization of the U.S. Chamber of Commerce and the American Civil Liberties Union were banned from running certain issue ads within 60 days of a general election and 30 days before a primary.

Once the law was in place, however, now-Senate Minority Leader Mitch McConnell (R-Ky.) and others fought ad curbs and other portions of BCRA in court, challenges that ultimately landed the case in front of the Supreme Court. The high court upheld the ban on electioneering communications and applied a smell test, of sorts.

“The idea was, look, if you’re in this window of 30 or 60 days and you’re running an ad on television or radio, it’s aimed at a specific jurisdiction, and you mention the name of the candidate, it’s going to be about influencing that election and going to be part of the corporate prohibition,” Norton said.

And that’s where agreement between all parties involved in the case essentially stops.

While acknowledging that “the electioneering communication prohibition was upheld on its face” in 2003’s McConnell v. FEC case, Wisconsin Right to Life lawyer James Bopp said that there is a certain amount of wiggle room for interpretation.

“The FEC and McCain argued that there were genuine issue ads and that genuine issue ads could be protected” on a case-by-case basis, Bopp said.

“There is nothing corrupting or improper — nor does the government have any power — to prohibit grass-roots lobbying by groups,” he added. “And our ad was a grassroots lobbying ad.”

It’s from that interpretation that Bopp, a longtime lawyer for parent group National Right to Life, reacted when leaders of a Wisconsin state affiliate came calling about three years ago regarding an ad they wanted to run protesting federal judicial filibusters.

The catch? The group wanted to run a series of ads during the mandated blackout period and sued the FEC for a temporary court order to lift the ban. After years of litigation, a three-judge panel in December 2006 ruled that the group should have been able to run the ads. The Supreme Court decided to take up the case soon after.

In an interview Friday, Bopp hinted at what he may argue before the court Wednesday. He said lawyers for McCain and others are stepping away from earlier claims regarding what is and is not a legitimate ad. Potentially at stake, he said, is the entirety of the high court’s earlier McConnell decision to limit ads by his client and others during election season.

“We have asked the court to give meaning to McConnell and allow genuine issue ads like Wisconsin Right to Life’s ad,” Bopp said. “[The appellees] repudiated the studies and expert testimony that was the basis of the distinction between sham and genuine” ads.

Not so, McCain’s army of lawyers likely will argue.

“This ad is precisely the kind of ad that was before the court in the McConnell case,” said Fred Wertheimer, president of Democracy 21 and one of the lawyers who appealed the case to the Supreme Court. “There are no substantive changed circumstances since that decision took place less that four years ago. This is the kind of ad that the statute intended to deal with.”

Norton, who represented the FEC in the case until he left the agency for private practice two months ago, suggests that the addition of Alito and Roberts to the court may bode well for Bopp. Both judges, he said, have been quiet on campaign finance matters and the McConnell case was decided by just one vote.

“McConnell was 5-4,” Norton said. “The armchair quarterbacks would say that there’s probably a majority [in the court] that’s more hostile to [the campaign finance] law. There was next to nothing about campaign finance law during the Alito and Roberts confirmation hearings.”

Norton said it’s too close to call whether the court will maintain the blackout period.

“It’s clearly vulnerable,” he said.

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