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Court could toss key part of campaign finance law

Story Highlights

• Supreme Court hears arguments on whether to lift restrictions on "issue ads"
• McCain-Feingold bans issues ads from 30 to 60 days before an election
• Supporters say issue ads can unfairly influence elections
• Opponents of restrictions say they violate First Amendment rights
By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- A majority of the Supreme Court's conservative bench appeared ready Wednesday to turn aside part of a sweeping campaign finance reform law with important implications for the upcoming presidential election

The question for the justices is whether "issue ads" -- which are aired mainly on television by advocacy groups, corporations, and labor unions to promote certain political or legislative causes -- can be banned 60 days before a general election, and 30 days before a primary.

That restriction was a key part of the 2002 McCain-Feingold bill setting strict limits on political spending and the message behind it.

Though issue ads can be used to promote particular causes, like environmental protection or tax reform, the law specifically prohibits the ads from endorsing or opposing a specific federal candidate -- or even mentioning them by name.

But though they are ostensibly issue-oriented, the government says these issue ads are often used to help or hurt at-risk candidates fighting for their political lives.

"These ads did not have some random distribution," argued Solicitor General Paul Clement, defending the restrictions. "These ads were really concentrated in close districts."

But an anti-abortion group claim they were prevented from airing what they call "grass-roots lobbying ads" aimed at focusing attention on a particular issue, not a candidate or office holder.

And corporate groups -- including special interest non-profits -- say preventing their messages from airing close to elections is an unconstitutional restriction of their First Amendment rights.

The federal government says these ads can influence an election, and argues restrictions are necessary because big-money corporate interests had always found legal ways to sidestep earlier laws on issue ads.

Wisconsin Right to Life filed a lawsuit in 2004, demanding the right to air ads that urged viewers to contact their Democratic U.S. senators -- Herb Kohl and Russ Feingold -- and "tell them to oppose the filibuster" of President Bush's conservative judicial nominees. Feingold was running for re-election in 2004, and both men serve on the Senate Judiciary Committee that confirms federal judges.

The ads mentioned the senators by name, but did not provide their contact numbers. Instead, the ads showed a link to a Web site on which WRTL posted critical information about Feingold.

Justices worry restrictions create confusion

In oral arguments, several conservative justices worried about whether the "blackout" restrictions in general are too narrowly tailored, creating confusion over the Wisconsin ads' legality.

Clement asked the bench to consider the context of the filibuster issue, which had been percolating on Capitol Hill for months. WRTL wanted to air its message just weeks before a competitive Senate race would be decided. "The ads were turning up in the close elections," he said.

But Justice Anthony Kennedy said advocacy groups know when their ads would be most effective. "The public only tunes in to the political dialogue shortly before an election. That's the the time you reach the public."

On the other side, Justice Stephen Breyer said Congress has legitimate and long-standing power to regulate the corrupting influence of "big money" funding of election advertising.

He called McCain-Feingold a "good law under the Constitution," and added, "In today's world, these are the kinds of ads run just to defeat people."

Unlikely bedfellows back appeal

The high court, in a series of rulings in recent years, has in general upheld the constitutionality of campaign finance reform laws from Congress. But a federal court last month allowed the Wisconsin group's lawsuit to go forward. They are supported by a large number of groups, including the ACLU, the National Rifle Association, the American Federation of Labor, and the U.S. Chamber of Commerce.

Money is central to this case, specifically the source used to fund issue ads. Federal law prevents corporate general treasury funds from being used for ads airing close to an election. But they could still be paid by a group's political action committee, or PAC. But PAC revenue is generally limited compared to general treasury funds, and subject to great restriction, such as the disclosure of donor names and amounts.

The justices in 2003 upheld the overall legality of McCain-Feingold. Then-Justice Sandra Day O'Connor wrote an opinion upholding Congress' justification and power to enact sweeping campaign finance reform. But Alito has since replaced her on the bench, and signaled somewhat muted skepticism in oral arguments over the issue ad provision. Either he or Roberts could prove to be the swing vote in the appeals, neither of whom was on the bench when the high court first considered the issue in 2003.

Though he was not participating in the latest appeal, co-sponsor of the McCain-Feingold bill, Sen. John McCain, R-Arizona, is a party to the case. He officially declared his candidacy for president less than two hours after the Supreme Court heard the issue ad cases.


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The Supreme Court's decision on issue ads will be closely watch by both liberal and conservative political action groups.

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