Fast review sought on big campaign finance case
on Jan 2, 2007 at 6:53 pm
UPDATE Thursday a.m. The Supreme Court will consider the motion to expedite at its Conference tomorrow, Jan. 5, according to the Court’s electronic docket.
UPDATE Wednesday p.m. Four members of Congress who have intervened in the case discussed here did not oppose the expedition request, but suggested that the Supreme Court would have ample time to decide the constitutional issues if the case goes over to the next Term for decision. The response can be found here. There is no indication that the Federal Election Commission plans to file a response of its own.
A group that won a major lower court fight over its use of internal funds to pay for campaign ads during federal election season has asked the Supreme Court to move up the case on its calendar, and decide it during the current Term. The motion to expedite was filed last Friday, and made public Tuesday by attorneys for the group, Wisconsin Right to Life. The text can be found here. The motion is docketed as 06M58.
The Federal Election Commission and four members of Congress who support vigorous enforcement of the Bipartisan Campaign Reform Act last week notified a three-judge U.S. District Court in Washington that they would appeal to the Supreme Court to challenge that panel’s Dec. 21 ruling in favor of Wisconsin Right to Life. Neither has yet to file its jurisdictional statement at the Court, it appears.
In the ruling last month, splitting the District Court 2-1, it ruled that it would be unconstitutional to apply a ban on election season campaign ads by corporations to the three specific ads that WRTL had sought to air in 2000.
The broadcast ban forbids so-called “electioneering communications” by corporations and labor unions using their own treasury funds, if the ad mentions a clearly identified federal candidate within 60 days before a general election and 30 days before a primary election. Although the Supreme Court in McConnell v. FEC in 2003 upheld that ban against a facial challenge, the Court ruled last year in Wisconsin Right to Life v. FEC that constiutional challenges could be made to the ban as applied to specific ads.
Although the District Court ruling in some respects is confined to the specific ads that WRTL had wanted to broadcast during 2004, the panel majority also ruled for the first time that it would be unconstitutional for Congress to have banned “genuine issue ads.” Those are ads, the panel said, that discuss a public issue without making a direct link between the exact words and images the ad uses and the fitness or lack of fitness of a specific candidate for federal office on that issue. Even if a candidate who is running is actually named in the ad, the District Court made clear, the ad cannot be banned for a corporation or labor union in election season unless it directly ties that candidate to the specific policy issue. Without such a tie, it concluded, it is not clear that the ad was intended to affect an election or be seen to do so.
Moreover, the District Court ruled that, in deciding whether an ad qualifies for this protected status, a court is to focus solely on what the ad’s words and images are, not on any political or other context that may exist at the time the ad is run — such as Wisconsin Right to Life’s long political opposition to Wisconsin Sen. Russ Feingold, the Democratic candidate whom it named in its planned 2004 ad campaign in the state, on the issue of Senate filibusters of judicial nominees.
The District Court cleared the way for fast appeals to the Supreme Court on Dec. 28, making clear that its Dec. 21 was final and thus appelaable on the question of WRTLs right to pay for the 2004 ads. It still has pending similar issues regarding planned 2006 ads, but WRTL has agreed to have the rest of the case put on hold pending final ruling on the 2004 ads by the Supreme Court. FEC and the members of Congress then promptly filed their notices of appeal, which go directly to the Supreme Court under the BCRA review schedule.
Under that schedule, the Supreme Court is obliged to give an appeal fast treatment, as it did in 2003 in the original BCRA decision.
WRTL in its motion to expedite on Friday suggested that the issues should be decided in the current Term, to get them resolved before the next round of federal election season gets going in 2008. It suggested that the FEC file its jurisdictional statement by Jan. 9, WRTL file its opposition by Jan. 12, with the issue going to the Court’s Conference on Friday, Jan. 19.
The group said it had contacted the Solicitor General’s office about its proposal, but said the SG’s office had not yet given an answer by Friday. It said lawyers for the members of Congress, intervenors in the case, had not responded by Friday.
