Issue ads allowed in election run-up

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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 yesterday in the first major dent in the 2002 McCain-Feingold 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 yesterday 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 near-blanket 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."