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The Supreme Court on Monday said that its landmark 2003 ruling upholding the McCain-Feingold campaign reform law did not foreclose all First Amendment challenges to provisions restricting pre-election issue advertising. The Court remanded to a three-judge panel in Washington, D.C., the case of Wisconsin Right to Life Inc. v. Federal Election Commission, which was argued before the high court Jan. 17 — a remarkably quick turnaround for a contentious issue. The ruling was announced on what could be Justice Sandra Day O’Connor’s final day on the bench — a milestone that went unnoted at the Court, probably because it is loath to prejudge what the other branches of government are doing. The Senate Judiciary Committee votes on her chosen successor, Samuel Alito Jr., on Tuesday, with the full Senate likely to vote later this week. The Supreme Court is out of session until Feb. 21. The campaign ruling keeps in play the question of whether the First Amendment allows Congress to ban directly funded issue advertising that refers to candidates within 60 days of an election. It also could invite other challenges to the law as applied to real-world situations not anticipated in the 2003 ruling McConnell v. FEC.
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“This could be an important first step toward undermining McConnell without overruling it,” says election law expert Richard Hasen, a professor at Loyola Law School in Los Angeles. The 2003 McConnell decision upheld, based on the language of the statute, the ban on certain kinds of electioneering ads paid for directly with corporate or union funds within 60 days of an election. The issue before the Court in the Wisconsin case was whether, despite that facial ruling, the law could be challenged as applied in a real-life case. The Wisconsin group said the law forced it to withdraw what it described as “grass-roots issue advertising” unrelated to an election just because Russ Feingold, one of the two Wisconsin Democratic senators mentioned in the ads, was running for re-election. The advertising was aimed at expressing opposition to Democrats’ filibustering of judicial nominees. Both the three-judge panel and the Bush administration, in defending the law against the Wisconsin group’s challenge, said the McConnell ruling foreclosed such as-applied challenges. But during oral argument last week, Chief Justice John Roberts Jr. seemed angry at the government for taking that stance, which he said amounted to a “classic bait and switch” because the government in pre-McConnell filings had said as-applied challenges were possible. Roberts’ concerns were reflected in the unsigned per curiam opinion that he announced from the bench on Monday. “In upholding [the law] against a facial challenge, we did not purport to resolve future as-applied challenges,” the ruling stated. O’Connor did not have a decision of her own to announce, but she did summarize a ruling written by Justice John Paul Stevens, who was absent. The ruling she read, Central Virginia Community College v. Katz, could, in some ways, symbolize the impact of her departure. The 5-4 decision said federal bankruptcy law trumps state sovereignty and allows a bankruptcy trustee to sue state agencies. O’Connor joined the majority.The four dissenters — Roberts and Justices Clarence Thomas, Antonin Scalia, and Anthony Kennedy — invoked the Court’s Seminole Tribe line of cases that embrace state sovereignty principles. If, as some commentators believe, Alito is more likely to gravitate toward that camp, he might have turned the dissent into a majority had he been on the bench earlier.

Tony Mauro can be contacted at [email protected].

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