- The Washington Times - Friday, December 22, 2006

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.”

Backers of the law were considering an appeal yesterday, while the FEC was weighing options.

“The commission is carefully studying the opinion and will consult with the Justice Department on the next appropriate step,” said Michael E. Toner, chairman of the Federal Election Commission.

The ads in question told listeners to call Wisconsin’s two senators, Democrats Russ Feingold and Herb Kohl, to urge them to oppose a filibuster of President Bush’s judicial nominees. Mr. Feingold is one of the key sponsors of the campaign-finance law that bears his name and that of co-sponsor Sen. John McCain, Arizona Republican.

In 2005, the panel ruled that the ads violated the campaign law because they mentioned Mr. Feingold, who was running for re-election. The court said the Supreme Court’s 2003 ruling in McConnell v. FEC left no room to judge on a case-by-case basis.

But the Supreme Court sent the case back to the panel earlier this year, ruling that cases could be decided individually.

District Judge Richard W. Roberts dissented from yesterday’s ruling, saying more facts were needed to decide what the right-to-life group’s motives were in running the ads.

The decision applies only to WRTL’s three ads. The court rejected the group’s request to write new rules for how to treat ads in the future.

Fred Wertheimer, president of Democracy 21, a group that backed the McCain-Feingold law, said the decision is narrow but he still disagrees with it. He said the advertiser’s motives should matter, even if the ad seems to be straightforward.

“The context surrounding the ads, and not just the text and face of the ads, must be considered in making this determination,” said Mr. Wertheimer, who is urging an appeal.

Challenges to the 2002 McCain-Feingold law are heard first by a panel of two district court judges and one judge from the court of appeals for the D.C. circuit. Appeals go directly to the Supreme Court.

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