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U.S. Supreme Court Lifts McCain-Feingold Grassroots Ad Blackout
by Martha Kleder, Concerned Women for America
The U.S. Supreme Court has lifted restrictions on grassroots groups, allowing them to again place issue-advocacy advertising before presidential and congressional elections. The June 25 opinion lifts part of the controversial “speech blackout” enacted by the Bipartisan Campaign Reform Act (BCRA) of 2002 (also known as the McCain-Feingold bill).
“Today, the U.S. Supreme Court restored the right of citizens and citizen organizations to engage in grassroots lobbying through the use of broadcast communications,” said Barbara Lyons, Executive Director of Wisconsin Right to Life, which challenged the blackout period. “The Court soundly rejected the attempts by Senators McCain and Feingold and their allies to silence Wisconsin Right to Life’s efforts to inform the public regarding an important issue pending in Congress and to urge citizens to contact their elected officials regarding that issue.”
Written by Chief Justice John Roberts, the majority opinion states, “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”
Roberts added that “the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.”
Section 203 bans corporations, labor unions and special interest groups from running television or radio ads that refer to a candidate for federal office two months before a general election or one month before a primary.
The Wisconsin Right to Life (WRTL) ads at issue criticized Sen. Russell Feingold (D-Wisconsin) for blocking the confirmation of several of President Bush’s judicial nominees. Because Sen. Feingold was running for reelection at the time, the ads were prohibited.
“This ruling just reaffirms what we already knew,” said Mike Mears, State Director of Legislative Relations for Concerned Women for America Legislative Action Committee. “Restricting the ability of grassroots organizations like Concerned Women for America or Wisconsin Right to Life to urge citizens to communicate with their elected officials doesn’t pass the constitutional smell test.”
James Bopp, Jr., lead counsel for WRTL, notes that there are genuine issue ads that incumbent politicians could not silence. “Grassroots lobbying is important to citizens’ involvement in their own government and it has nothing to do with elections,” said Bopp. “Incumbent politicians have no constitutional authority to quash criticism of their conduct in office. The American Revolution was fought, and the First Amendment enacted, precisely to protect the people’s right to criticize the government.”
While this ruling came well in advance of next year’s presidential and congressional election, Bopp says that the Federal Election Commission must now act to adopt regulations which “give full effect to the Supreme Court’s mandate.”
Dr. Janice Shaw Crouse, Senior Fellow and Director of Concerned Women for America's Beverly LaHaye Institute, agrees. As she recently told Human Events (6/27/07) “The ruling enables us to point out last minute developments in policy and communicate with the public on issues just before the elections. There is, however, considerable discussion on whether it goes far enough and is clear enough,” said Crouse.
The history of this case and the full text of the oral arguments and opinion can be found at Wisconsin Right to Life.
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