2006 started with a Supreme Court decision that allowed the Wisconsin Right to Life Committee (WRTL) to challenge the constitutionality of the McCain-Feingold rule that barred them from airing grassroots lobbying ads about judicial nominations 60 days before the 2004 election. The case was sent back to a lower court to decide if the facts in WRTL's situation entitled it to an exemption from the ban.

On Dec. 21 the three judge district court found that WRTL did not violate the prohibition in campaign finance law that bars use of the group's treasury funds for communications that expressly advocate election or defeat of federal candidates because the ad was about a genuine public policy issue, did not refer to the election and did not have language promoting or attacking a federal candidate. The court rejected arguments that they should look beyond the content of the ad and consider WRTL's intent in airing it, saying they do not believe "the speculative conjecture of experts can actually project the 'likely' impact of a given ad on the electoral process."

The case is likely to end up back in the Supreme Court and be decided before the 2008 primary season begins. While the results only apply to WRTL and do not create an exemption for all grassroots lobbying ads, the outcome is likely to have an impact on other courts and Federal Election Commission, which rejected a proposed exemption for grassroots lobbying earlier this year, saying it would wait for guidance from the courts.

The case is part of a long standing debate on the need to regulate use of soft money in federal campaigns. It has pitted first amendment rights against the need to protect the election process from corruption, with little dialog about finding a balanced approach. This decision recognizes the importance of people's right to engage in grassroots lobbying, and the dangers of government trying to go beyond actual statements and read minds to determine the "intent" of a communication.

See the court's opinion
For information see an analysis that agrees with the court see Bob Bauer's blog, and this blog posting by Prof. Rick Hasen.

Posted by Kay Guinane, 11:17:06 AM

Tuesday, December 05, 2006