Supreme Court To Hear Two Major First Amendment Casesby Doug Mataconis
Via SCOTUSblog comes word that the U.S. Supreme Court has agreed to hear appeals in two cases dealing with challenges to the McCain-Feingold law’s restriction on advertising by third-parties within 60 days of an election:
Returning to the much-litigated controversy over political campaign ads broadcast during election season, the Supreme Court on Friday agreed to rule on two cases that newly test the constitutionality of congressional curbs on such ads. In a brief order, the Court granted review of Federal Election Commission v. Wisconsin Right to Life (05-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The cases were consolidated and expedited so that the cases can be heard and decided during the current Term — well in advance of the opening of the presidential campaign in 2008. Because there is a potential issue of mootness in the case, the Court postponed a decision until the hearing on whether it does, indeed, have jurisdiction to rule.
The campaign ad cases are sequels to the Court’s 2003 decision upholding the ban on so-called “electioneering communications.” However, it made clear in a summary ruling a year ago that that decision involved only a facial challenge and “did not purport to resolve future as-applied challenges.” The new appeals involved just such as-applied challenges, to the threat of FEC prosecution of Wisconsin Right to Life over three ads that group prepared to air during the 2004 senatorial campaign. A three-judge U.S. District Court in Washington, D.C., in a decision Dec. 21, ruled that the “electioneering communications” ban was invalid as applied to those specific ads.
The ban forbids corporations and labor unions from using their own in-house funds to pay for broadcast ads that mention in any way a federal candidate, if the ad runs 30 days before a primary election or 60 days before a general election. Wisconsin Right to Life’s planned ads would have mentioned Wisconsin Democratic Sen. Russ Feingold, who was running for reelection in 2004, in ads that discussed Senate filibusters of judicial nominees.
How this could not be a violation of the First Amendment escapes me completely.