U.S. Supreme Court

Court Says Issue Ads Protected

Updated: The U.S. Supreme Court has ruled that a group opposing abortion had a First Amendment right to run election-season issue ads that named a Senate candidate.

“Today’s opinion is a major victory for those who oppose campaign finance regulation, and will likely lead to a new proliferation of corporate- and union-funded campaign ads in the 2008 election season,” Rick Hasen, a professor at Loyola Law School in Los Angeles, writes at his Election Law Blog.

The justices did not overturn McConnell v. Federal Election Commission, which upheld campaign restrictions in the Bipartisan Campaign Reform Act of 2002. But the court said the campaign law, which restricts TV ads by unions and businesses in the weeks before an election, could not be constitutionally applied to the ads at issue.

“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Chief Justice John G. Roberts Jr. wrote for the court. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

The case involved Wisconsin Right to Life, which ran broadcast ads asking voters to contact their state senators to oppose a filibuster of court nominees, Associated Press reports.

Hasen writes that although the decision does not expressly overrule McConnell, the “limit on corporate and union spending is now dead as a practical matter.” He says the court adopted a “see no evil” test: Any ad that can be viewed as relating to an issue rather than the election of a candidate should be exempted from requirements that it be funded by a separate Political Action Committee.

Three justices–Antonin Scalia, Clarence Thomas and Anthony M. Kennedy–said they would have overturned the 2003 McConnell ruling, Bloomberg News reports.

Scalia was among the justices who expressed doubts during oral arguments about the federal campaign law.

The ruling is in two consolidated appeals: Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, Nos. 06–969 and 06–970 (PDF).

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