Lobbying versus electioneering

When Congress passed the McCain-Feingold campaign finance reform law in 2002, supporters praised it as an effective way to restrict a flood of unregulated special-interest money into federal elections.

Opponents denounced the campaign-finance restrictions as a form of government censorship. The law would permit government control over the kind of core political speech the First Amendment was written to protect, they said.

In 2003, the US Supreme Court upheld most of the law's provisions. But not everyone has been happy with how the Bipartisan Campaign Reform Act is being enforced in individual cases.

Tuesday the Supreme Court is set to hear a challenge to a portion of the law that bars corporations and unions from placing broadcast advertisements that mention a candidate by name. The ban on so-called electioneering communications can extend for up to three months prior to an election.

At issue in Wisconsin Right To Life v. Federal Election Commission is whether the campaign-finance law applies only to ads aimed at influencing elections or whether it also bans broadcast ads meant to influence the legislative process and the work of Congress in the often-critical weeks before an election. The suit asks whether corporations and unions interested in lobbying rather than electioneering are nonetheless barred from placing broadcast ads that mention a candidate.

"There is a huge difference between electioneering and lobbying," says James Bopp, who is arguing the case on behalf of Wisconsin Right To Life Inc.

Solicitor General Paul Clement disagrees. He says such lobbying efforts carried out on the eve of an election amount to "dual purpose" communications. Because such lobbying cannot easily be separated from electioneering, both are regulated under the law, he says.

"A group that feels strongly enough about an issue to air an advertisement on it in the months before an election ... will invariably have a view as to which candidates may be more favorably disposed to the group's view of the issue," Mr. Clement writes in his brief.

The case began in 2004 when Wisconsin Right To Life filed suit complaining that the law prevented it from airing a series of broadcast ads in the two months before the election. The ads encouraged Wisconsin's senators, Herb Kohl and Russell Feingold (a co-sponsor of the campaign-finance law), not to participate in a Democratic filibuster of President Bush's appeals court nominees.

They urged Wisconsin residents to contact the senators about the issue but did not say whether voters should support the two at the polls. The ads did identify both senators by name, and because Senator Feingold was running for reelection they triggered the ban on "electioneering communications."

Mr. Bopp says the campaign-finance law is over-broad because it regulates political speech not directed toward the outcome of an election. "It is one thing to limit a corporation's ability to influence elections, but it seems quite another to prohibit them from effective means of lobbying," he says.

The First Amendment states that Congress shall make no law abridging the right of the people to petition the government for redress of grievances, Bopp says. "The Framers thought that right to petition the government was important enough to separately list," he says.

Others have a different view. The ban on electioneering communications closes an election-law loophole that permitted corporations and unions to spend unlimited amounts of so-called soft money on sham issue ads whose real aim was to support or undercut a particular candidate, say supporters of campaign-finance reform.

The McCain-Feingold law sought to close that loophole by establishing a bright-line rule: If unions and corporations want to engage in electioneering during the regulated time period, they must pay for their broadcast ads using money raised in political action committees, not through their general treasury funds.

In addition, campaign-reform supporters say, unions and corporations remain free to use broadcast ads for pre-election lobbying. The ads must simply avoid mentioning a candidate's name.

The Supreme Court upheld the electioneering communications provision in a 5-to-4 vote in December 2003. But the high court did not make clear whether corporations and unions would be permitted to file future constitutional challenges to the law or whether any disputes would simply be resolved by the Federal Election Commission.

A footnote in the 2003 decision suggests the majority did not intend to close the door on future court challenges, Bopp says. In footnote 88, the majority justices wrote in part: "We assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads."

A factor clouding the case is the expectation that Justice Sandra Day O'Connor will soon retire from the court if Samuel Alito wins Senate confirmation as her replacement. Justice O'Connor was among the five-member majority that upheld the campaign-finance provision in 2003.