Panel of judges says is­sue ads must be al­lowed in elec­tion run-up

The Washington Times Weekly - - National - By Stephen Di­nan

Po­lit­i­cal groups have a con­sti­tu­tional right to run is­sue ads that in­clude the name of a can­di­date for of­fice even in the con­tentious days be­fore an elec­tion, a panel of fed­eral judges ruled Dec. 21 in the first ma­jor dent in the 2002 McCainFein­gold cam­paign-fi­nance law.

Un­der that law, ads that in­ter­est groups ran 60 days be­fore an elec­tion or 30 days be­fore a pri­mary were as­sumed to be aimed at in­flu­enc­ing vot­ers if they men­tioned a can­di­date for fed­eral of­fice.

But in a 2-1 rul­ing, the panel on Dec. 21 said three ads from Wis­con­sin Right to Life (WRTL) in 2004 were is­sue ads rather than elec­tion ads and can­not be banned out­right. The panel said per­mit­ting such ads should be de­cided based on the in­di­vid­ual con­tent.

“On their face, WRTL’s three 2004 anti-fil­i­buster ad­ver­tise­ments were not in­tended to in­flu­ence the vot­ers’ de­ci­sions,” Dis­trict Court Judge Richard J. Leon wrote in the ma­jor­ity opin­ion, joined by Ap­peals Court Judge David B. Sen­telle.

The small but po­ten­tially deep change cre­ates an ex­cep­tion to what had been con­sid­ered a near­blan­ket rule.

“A free-speech in­ter­est is too sub­stan­tial here,” said Carl To­bias, a law pro­fes­sor at the Univer­sity of Rich­mond, who said the gov­ern­ment didn’t jus­tify such a broad ban.

The 2002 law was meant to end the use of “soft money,” or un­re­stricted do­na­tions, to run ads that ap­pear to be talk­ing about is­sues but in­tend to af­fect an elec­tion.

Crit­ics say in­ter­est groups could use the rul­ing as a loophole to run such “sham” ads and say judges should con­sider the groups’ mo­tives.

In­ter­est groups had ar­gued that the law kept them from play­ing a le­git­i­mate role in ed­u­cat­ing vot­ers and in­flu­enc­ing the leg­isla­tive process.

“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 Jr., the right-to-life group’s lawyer. “This grass-roots lob­by­ing is sim­ply self-gov­ern­ment at work, which is pro­tected by the First Amend­ment.”

Back­ers of the law were con­sid­er­ing an ap­peal on Dec. 21, while the FEC was weigh­ing op­tions.

“The com­mis­sion is care­fully study­ing the opin­ion and will con­sult with the Jus­tice De­part­ment on the next ap­pro­pri­ate step,” said Michael E. Toner, chair­man of the Fed­eral Elec­tion Com­mis­sion.

The ads in ques­tion told lis­ten­ers to call Wis­con­sin’s two sen­a­tors, Democrats Russ Fein­gold and Herb Kohl, to urge them to op­pose a fil­i­buster of Pres­i­dent Bush’s ju­di­cial nom­i­nees. Mr. Fein­gold is one of the key spon­sors of the cam­paign-fi­nance law that bears his name and that of co-spon­sor Sen. John McCain, Ari­zona Repub­li­can.

In 2005, the panel ruled that the ads vi­o­lated the cam­paign law be­cause they men­tioned Mr. Fein­gold, who was run­ning for re-elec- tion. The court said the Supreme Court’s 2003 rul­ing in McCon­nell v. FEC left no room to judge on a case-by-case ba­sis.

But the Supreme Court sent the case back to the panel ear­lier this year, rul­ing that cases could be de­cided in­di­vid­u­ally.

Dis­trict Judge Richard W. Roberts dis­sented from the Dec. 21 rul­ing, say­ing more facts were needed to de­cide what the right-to­life group’s mo­tives were in run­ning the ads.

The de­ci­sion ap­plies only to WRTL’s three ads. The court re­jected the group’s re­quest to write new rules for how to treat ads in the fu­ture.

Fred Wertheimer, pres­i­dent of Democ­racy 21, a group that backed the McCain-Fein­gold law, said the de­ci­sion is nar­row but he still dis­agrees with it. He said the ad­ver­tiser’s mo­tives should mat­ter, even if the ad seems to be straight­for­ward.

“The con­text sur­round­ing the ads, and not just the text and face of the ads, must be con­sid­ered in mak­ing this de­ter­mi­na­tion,” said Mr. Wertheimer, who is urg­ing an ap­peal.

Chal­lenges to the 2002 McCainFein­gold law are heard first by a panel of two dis­trict court judges and one judge from the court of ap­peals for the D.C. cir­cuit. Ap­peals go di­rectly to the Supreme Court.

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