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Advocacy Blog
Wednesday, April 25, 2007
Wisconsin Right to Life Arguments
This morning the Supreme Court heard oral arguments in the Wisconsin Right to Life case, and this morning's news had an abundant number of stories for those who needed to catch up on the intricacies of the case. (A few include; The Appleton Post-Crescent, The New York Sun, Portland Herald) There is good reason why the case is in the limelight, as many say it is one of the most important campaign finance cases in years. The issue at the heart of the debate is quite important considering the relevance to nonprofit organizations, which must be able to engage in grassroots lobbying whenever issues come up, even during the period right before an election. The "electioneering communications" rule in the Bipartisan Campaign Reform Act of 2002 (BCRA) is too broad, and does not allow for an advocacy group to put out ads that purely try to address an issue of concern, or policy stance of a candidate while at the same time not asking the viewer to vote for a particular candidate.
Many are unduly anxious what will result without the electioneering communications rule, for example; "groups warn the justices in the case to be argued today that campaign advertising could take a nastier, more negative turn if the court enhances the ability of corporations and unions to finance ads that influence federal elections." However, a distinction must be made since there are specific circumstances for nonprofits, which can not set up a separate PAC to address genuine issue advocacy that occurs at all times. This was stated in an amicus brief OMB Watch filed along with other charities that strongly urges the court to "take the occasion to grant both clarity and relief to section 501(c)(3) organizations."
Editorials in the New York Times and the Washington Post adamantly express their opinions. For example, the New York Times writes that the case "could determine whether a major new leak opens up, one that would allow corporations and unions to pour unprecedented amounts of money into political campaigns. It is important that the court continue to keep this money out."
The Washington Post comments more realistically that "[law] should not require judges to blind themselves to the obvious context in which these ads are run, but neither should it invite open-ended judicial inquiry into the motives of those who want to speak on public issues. If it finds that the ad in this case does not amount to "the functional equivalent of express advocacy" of a candidate's election or defeat, it needs to do so in a way that will not open the floodgates for a new wave of sham ads."
And Bradley A. Smith and Stephen M. Hoersting in the Washington Times point out that "McCain-Feingold freezes many groups out of the process at the most critical time. For one thing, it's not as if Congress stops voting close to an election. . . . In recent years, within blackout periods, the House and Senate have voted on such high-profile issues as abortion, impeachment, homeland security and appropriations."
The electionlawblog has a run down of the oral arguments which encouragingly notes, "Clement [for the FEC] would like the Court to put the question off, noting that 501(c)(3)s may have a plausible case for an as applied challenge because they can't create a PAC, and running ads against an unopposed candidate might entitle a corporation to an exemption from the PAC requirement." The blog Skeptic's Eye also has observations.
Posted by Amanda Adams
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