Federal Appeals Court Panel Rules In Favor Of Wisconsin Antiabortion Group's Appeal Of Campaign Finance Law

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia on Thursday ruled 2-1 in favor of a Wisconsin antiabortion group's constitutional challenge of key provisions of the McCain-Feingold federal campaign finance law, the New York Times reports (Phillips, New York Times, 12/22). The Supreme Court in January in a unanimous, unsigned opinion ruled that its December 2003 ruling upholding key provisions of the McCain-Feingold federal campaign finance law should not have prevented a lower court from considering an antiabortion group's constitutional challenge of the law. Wisconsin Right to Life in its lawsuit challenging McCain-Feingold was seeking permission to run television and radio advertisements within 30 days of a 2004 primary that mentioned Sen. Russell Feingold's (D-Wis.) name and focused on his opposition to several of President Bush's judicial nominees. The group claims that the campaign finance law's prohibition of such ads is unconstitutional. A three-judge panel of the U.S. District Court for the District of Columbia in August 2004 unanimously rejected WRTL's challenge to campaign finance law provisions that prohibit the use of interest groups' "issue ads" during the weeks preceding an election. A three-judge panel in September 2004 upheld the district court's ruling, saying the Supreme Court in 2003 effectively barred constitutional challenges to the provisions of the law that the high court upheld. WRTL appealed the ruling to the Supreme Court. The Supreme Court in January said that when it upheld the law's provision concerning "electioneering communications" against a "facial challenge in the 2003 decision," it did "not purport to resolve future as-applied challenges." The justices ordered the district court "to consider the merits of WRTL's" challenge of the provision (Kaiser Daily Women's Health Policy Report, 1/24).

Ruling, Reaction
The three-judge panel on Thursday overturned key segments of the campaign finance law that restrict issue ads funded by unions or corporations, such as WRTL, during the weeks before federal elections, the Times reports. The panel's ruling said that WRTL ads were not campaign ads but general issue ads and that the government did not demonstrate a compelling enough argument to impose restrictions on groups' free-speech rights. The decision also said that the portion of the McCain-Feingold law banning issue advertisements paid for by corporate or union money is unconstitutional because it imposes campaign finance restrictions on groups that are using ads to advance legislative policy (New York Times, 12/22). WRTL's ads were a "textbook example of genuine issue ads" because they do not encourage voters to support or oppose Feingold at the polls, the ruling said (Savage, Los Angeles Times, 12/22). "In this case, the language in ... the advertisements does not mention an election, a candidacy or a political party, nor do they comment on a candidate's character, actions or fitness for office," U.S. District Judge Richard Leon wrote in the majority opinion (Reuters, 12/21). He added, "The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech" (Apuzzo, AP/Forbes, 12/21). In his dissent, U.S. District Judge Richard Roberts said there was reason to believe the advertisements "were intended to influence a Senate election" and therefore should be covered by the law (Los Angeles Times, 12/22). The court's decision "loosened the clamps" on such activities, according to the Times. Corporations and unions that want to broadcast such advertisements are "going to push the envelope," Edward Foley, an election law expert at Ohio State University, said, adding, "They're going to explore the scope of this exemption" (New York Times, 12/22). In addition, the panel's decision "sets the stage" for the Supreme Court to re-evaluate the McCain-Feingold Act, the Los Angeles Times reports. According Richard Hasen, a professor at Loyola Law School, the Supreme Court might consider the case if the Federal Election Commission files an appeal. He added that the outcome likely will "chi[p] away at campaign finance laws" (Los Angeles Times, 12/22). If the Supreme Court agrees with Thursday's decision, justices likely would have to establish how to differentiate between genuine and false issue ads (AP/Forbes, 12/21).

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