- The Washington Times - Monday, January 23, 2006

The Supreme Court yesterday overturned a lower court’s ruling that had barred an anti-abortion group from running television advertisements mentioning a specific senator during his 2004 re-election campaign.

At issue is a challenge by Wisconsin Right to Life (WRTL) to ad limits set by the 2002 McCain-Feingold campaign-finance reform law. The law bans corporate or union money from paying for ads that identify candidates for federal office by name two months before Election Day.

In what some court observers saw as a move to sidestep a major review of the law until the pending nomination of Judge Samuel A. Alito Jr. to the high court is resolved, the justices delivered a short, unsigned opinion, sending the case back to the U.S. Court of Appeals for the District of Columbia for further review.

“I think they tried to make a narrow ruling while the court’s membership was intact, thereby precluding the need for rehearing when Alito joins the court,” said Thomas E. Mann, a senior fellow of governance studies at the Brookings Institution.

WRTL argues the law does not clearly define what ads are restricted during the two-month blackout period before elections. Specifically, the group sought to have the law declared unconstitutional when applied to its own 2004 ads against Sen. Russell D. Feingold, Wisconsin Democrat, who at the time was running for re-election.

WRTL argued its television ads should be immune because they did not directly call on voters not to vote for Mr. Feingold, but instead served as “grass-roots lobbying” ads urging people to phone senators and ask them to oppose the filibustering of Bush administration judicial selections.

The U.S. appeals court disagreed, citing a 2003 Supreme Court ruling, which upheld the McCain-Feingold law. In remanding the case yesterday, the justices said the appeals court had erred in reading the 2003 ruling as a permanent block on all future challenges to McCain-Feingold’s ad limits.

Depending on how the appeals court rules in light of the order, scholars say the case could end up back at the high court.

“The case carries significant potential to limit the reach of the electioneering-communications restrictions,” said Lillian Riemer BeVier of the University of Virginia School of Law. “But we don’t know whether that’s going to happen for quite a while, given how long the litigation process takes.”

“I think the Wisconsin Right to Life people do have a case, based on their allegations that they are a citizens’ grass-roots political organization and not a profit-making (or even a non-profit) corporation,” she said. “The ‘let’s get big money out of politics’ rationale of the electioneering-communications restrictions does not apply to them.”

Mr. Mann, meanwhile, said the justices appear “to have initiated a judicial effort to define genuine ‘issue ads.’”

“It is not at all clear where this will lead,” he said. “I suspect the district court panel will rule against WRTL on the merits of their argument that their ad should not have been covered by the law.”

In other action, the justices:

• Set a March 28 oral argument for the challenge to President Bush’s authority to try Osama bin Laden’s former driver, Salim Ahmed Hamdan, by special military tribunal at U.S. Naval Base Guantanamo Bay, Cuba, where the Yemeni man has been detained.

• Refused to hear an appeal brought by the maker of BlackBerry, the hand-held wireless e-mail device, to long-running claims that the Canada-based company has violated intellectual-property rights of a U.S. patent holder.

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