WASHINGTON - The Supreme Court signaled yesterday that it was likely to permit a return to broadcast ads next election season that tell voters to "contact" a candidate and "send him a message."
These were known as "issue ads" by their sponsors, but most everyone else understood that they were intended to help or hurt a candidate running for federal office.
Federal law has long prohibited corporations from directly supporting election candidates. When it passed the McCain- Feingold campaign-finance legislation in 2002, Congress extended that prohibition to ban corporations and unions from funding pre-election broadcast ads that mention a candidate for office.
This ban was intended to stop issue ads sponsored by the insurance and drug industries, among others, that flooded the airwaves in the weeks before an election.
The limited broadcast ban goes into effect 30 days before a state primary involving candidates for Congress or president. It also covers the 60 days before the general election in November.
Although the Supreme Court, in a 5-4 vote in December 2003, cleared the way for the McCain-Feingold law to take effect, the justices heard a new, targeted challenge to it yesterday.
The challenge came from a Wisconsin antiabortion group that had sought to run radio ads in 2004 that faulted the state's two Democratic senators for supporting filibusters of President Bush's judicial nominees. "Contact Sens. Feingold and Kohl," the ad said.
Besides cosponsoring the congressional ban on such ads along with Sen. John McCain (R, Ariz.), Russ Feingold was running for reelection at the time. Herb Kohl was not up for reelection.
James Bopp Jr., a lawyer for the Wisconsin Right to Life Committee, urged the court either to strike down the pre-election broadcast ban entirely or to permit an exemption for "grass-roots lobbying."
Although the Wisconsin group is a nonprofit, it is incorporated, and it receives donations from profit-making companies. Bopp argued that the First Amendment protected the right of groups such as his to lobby lawmakers on issues of the day.
"If we agree with you in this case, goodbye, McCain-Feingold," said Justice Stephen G. Breyer, who said corporate groups would see such a ruling as giving a green light to pre-election broadcasts that were designed to aid or undercut a candidate.
But based on their comments yesterday and their past decisions, a five-member court majority is likely to side with the challengers and allow at least some corporate groups to pay for pre-election radio and TV spots that speak of candidates.
Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy have said that the McCain-Feingold Act should be struck down on free-speech grounds, and dissented from the 2003 ruling that upheld most of the law. They are likely to be joined this time by Bush's appointees: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
"Maybe we were wrong last time," Scalia said yesterday of the earlier ruling.
Roberts said he was not persuaded that the broadcast ban should be struck down entirely. Instead, he asked how advocacy groups could be exempted from it so they could sponsor ads that focus on issues, not candidates.
Bopp said the court, at minimum, should permit ads that focus on issues that are pending before Congress.
A ruling by the justices is expected by the end of June. The consolidated case is Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life.
The Supreme Court threw out death sentences for three Texas killers yesterday because of problems with instructions given to jurors who were deciding between life in prison and death.
The court set aside the death penalty for the second time for LaRoyce Lathair Smith. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.
The cases stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might lead them to impose a life sentence instead of death.
In all three 5-4 rulings, Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens formed the majority. Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas dissented.
Forty-seven inmates on Texas' death row were sentenced under the abandoned rules.
- Associated Press
Read a transcript of the court arguments via http://go.philly.com/campaignlawEndText