Court takes new look at campaign finance

WASHINGTON – It was clear from the start Wednesday just how eager some justices were to revisit the landmark McCain-Feingold campaign finance act that the Supreme Court only four years ago blessed as constitutional.

“Maybe we were wrong last time,” Justice Antonin Scalia told Solicitor General Paul Clement when Clement advised that the issue at stake in Wednesday’s oral arguments had already been decided by the court.

Scalia was in the minority of the court then. But by the end of Wednesday’s oral arguments, it seemed he was now part of a majority on the new court headed by Chief Justice John Roberts that appeared skeptical of the way Congress tried to curb the election-year influence of unions, corporations and special interest groups.

It was a lively session with prevailing justices in 2003’s McConnell v. Federal Election Commission defending the court’s precedent – “It’s sort of, for me, deja vu all over again,” said Justice Stephen Breyer. “We’ve heard it.”

Roberts and Justice Samuel Alito, who were not part of that earlier 5-4 decision, may be the keys to how the latest challenge fares. Roberts was an especially tough questioner of Clement, whose duty was to defend the portion of the law under attack, although the chief justice seemed uncomfortable with the idea of blatantly disregarding the court’s precedent.

A decision to either overturn the court’s previous endorsement of McCain-Feingold or loosen the restrictions surrounding the use of so-called issue ads could have a major impact on the 2008 elections.

Wednesday’s arguments concerned a portion of the law that says corporate entities cannot fund from their general treasuries broadcast ads that run 30 days before a primary or 60 days before a general election, are aimed at a relevant electorate and mention a federal candidate by name.

The naming restriction was particularly important because Congress was trying to do away with “sham” issue ads that purported to be about a controversy but really amounted to an attack on a candidate.

The court in 2003 said the “vast majority” of such issue ads fell into the category of electioneering and upheld the restriction. But last year, the justices ruled that groups could challenge the law based on specific applications.

The case before the court Wednesday involved ads that Wisconsin Right to Life, an anti-abortion group, was prevented from broadcasting during the 2004 campaign. The court is expected to rule in the case this summer.