Supreme Court Hears Challenge to Key McCain-Feingold Provision.

When the Supreme Court heard oral arguments in Federal Election Commission v. Wisconsin Right to Life, and Sen. John McCain, et al., v. Wisconsin Right to Life, it was clear that a number of justices were highly doubtful of a key provision of the 2002 McCain-Feingold campaign finance "reform" law while others were equally adamant it had to be upheld.

The free speechstifling provision at issue says that in the 60 days prior to a general election or 30 days prior to a primary, citizen advocacy groups such as Wisconsin RTL (WRTL) cannot sponsor radio and TV ads that even mention a candidate for federal office, including current office holders,

In December 2003, the High Court in McConnell v. FEC upheld the core of the "Bipartisan Campaign Reform Act of 2002" (the McCain-Feingold law) in a split 54 decision. But WRTL challenged a portion of the law that dealt with "electioneering communications"the term McCain-Feingold applies to broadcast ads that refer by name to a federal candidate within 30 days before a primary election or 60 days before a general election.

In 2004, WRTL wanted to broadcast TV ads during these "blackout periods." The ads simply said that some senators in Washington were "using the filibuster tactic" to prevent an up or down vote on a number of President Bush's judicial nominees. "Contact [Wisconsin] Sens. [Russell D.] Feingold and [Herb] Kohl and tell them to oppose the filibuster," the ad said. One of those senatorsRuss Feingold (D)was running for re-election.

WRTL believed the ads to be an example of motivating grassroots citizens to communicate with their elected representatives and of an activity highly protected by the First Amendment. However, rather than risk criminal prosecution, WRTL filed an as-applied [case by case] suit and sought a preliminary injunction to permit continued running of its ads. Over the next two and a half years a lengthy series of cases ensued, culminating with the Supreme Court hearing the two cases April 25.

Two justices were not on the Court in 2003: Chief Justice John Roberts and Justice Samuel Alito. According to press accounts, both were skeptical of the provision of McCain-Feingold.

Writing on the scotusblog.com, Lyle Denniston concluded that the main thrust of the criticism against the electioneering communications restrictions was that they "do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates."