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WASHINGTON � The Supreme Court’s three-year embrace of the McCain-Feingold campaign finance reform law seemed to loosen Wednesday, as justices debated a First Amendment challenge to the law’s provision that bars certain types of issue advertisements in the run-up to elections. A majority of justices questioned one or another aspect of the provision during hourlong arguments in Federal Election Commission v. Wisconsin Right to Life. The case is an “as-applied” challenge to the ban on “electioneering communications” directly funded by corporations and unions 30 days before primary and 60 days before general elections. The court, with now-retired Justice Sandra Day O’Connor in the majority, upheld the law on its face more than three years ago in McConnell v. FEC, but the justices left the door open to challenges once the law took effect. The Wisconsin group sued the FEC over ads it wanted to broadcast in 2004, questioning the position taken by the state’s two senators on the issue of filibustering President Bush’s judicial nominees. Because one of the senators, Russ Feingold, was facing re-election, the ads would have violated the law if aired. The lower court, focusing on the words of the ads, found that banning them would violate the First Amendment. Solicitor General Paul Clement defended the law against skeptical questioning from several justices including the court’s newest members, Chief Justice John Roberts and Justice Samuel Alito. The justices seemed most concerned about how to regulate election-oriented advertising that Congress wanted to insulate from special-interest spending, without at the same time censoring genuine grassroots speech aimed at affecting public policy. Justices Antonin Scalia and Anthony Kennedy suggested in different ways that the ban on issue advertising would squelch political speech at the precise time when it might be most effective in changing policy. Clement started to suggest that a group with a “pure heart” and no plans to affect an election could assert in court that its ads should not be covered by the law. But Scalia erupted, “This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not. . . . It seems to me you need a clear First Amendment line. And you’re not giving us any.” Clement said the words of the McCain-Feingold law itself “couldn’t be clearer.” Later, Alito asked Clement how long “the blackout period” would be for issue advertising before the 2008 election. Clement began to answer with the 30- and 60-day features of the law. But Scalia, apparently referring to overlapping blackout periods in media markets that serve several states, interrupted, “It could be as long as 200 days; isn’t that correct?” Former Solicitor General Seth Waxman, representing senators who defended the law, had 10 minutes to supplement Clement’s argument. He stressed that the law does not ban pre-election issue ads altogether, but merely requires that they be paid for by regulated political action committees � rather than from direct union or corporate funds. Alito interjected that “so many advocacy groups . . . say this is really impractical,” referring to the creation of PACs and the burden of funneling their advertising through such committees. Waxman, of D.C.’s WilmerHale, launched into an unusually lengthy attack on one of those groups, the American Civil Liberties Union, which complained about the ban but, he said, is not harmed by it because the ACLU never mentions candidates by name in its advertising. Roberts responded, “Just because the ACLU doesn’t do that doesn’t seem particularly pertinent to me.” And Scalia asked, “Why pick on the ACLU?” Another sign of trouble for the law was the fact that Justices Stephen Breyer and David Souter, past supporters of the law, felt the need to mount passionate defenses for it when James Bopp Jr. rose to argue for the Wisconsin group. Breyer argued that the court had already considered the arguments against the ban and upheld it anyway. “It’s sort of for me deja vu all over again,” Breyer said, adding that “If we agree with you in this case, goodbye McCain-Feingold.” Bopp, partner at Bopp, Coleson & Bostrom in Terre Haute, Ind., argued that the law poses a “dilemma” for advocacy groups “because we have Congress in session during the blackout periods, voting on items. And we have in the First Amendment one of the four indispensable freedoms, your right to petition the government.” Short of overturning the law outright, Bopp urged a narrow interpretation of the ban which, like the lower court, focuses on the words of the ads to determine if they are issue ads or ads aimed at electing or defeating a candidate. Souter attacked that stance, arguing that context matters as much as words, and that voters can tell from context when an advertisement is aimed at swaying their vote. “You think they’re dumb?” Souter asked Bopp incredulously. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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