New appeals filed on campaign ads

The Federal Election Commission and four members of Congress — two Democrats and two Republicans — asked the Supreme Court on Friday to uphold the FEC’s power to ban specific broadcast ads that a private advocacy group had prepared to air during campaign season. The outcome of the case could have a major impact on government authority to regulate not just these particulars ads, but a wide array of near-election ads that mention candidates by name but do not come out for or against them directly.

In separate jurisdictional statements, the FEC and the lawmakers urged the Court to overturn a decision by a three-judge District Court that banning those specific ads would be unconstitutional. (The lawmakers were intervenors in the case at the District Court, and thus have a separate right to appeal.) The ads involved actually were not aired when planned in 2004, because of the threat of an FEC challenge; that led to the constitutional challenge to the Commission’s authority.

The FEC’s new appeal can be found here. The separate appeal — by Sen. John McCain, R-Ariz., Rep. Tammy Baldwin, D-Wis., Rep. Christopher Shays, R-Conn., and Rep. Martin Meehan, D-Mass. — can be found here. (Thanks to attorneys involved for supplying copies of these documents.) As of Friday night, the Court had not yet assigned docket numbers to the appeals.

Because the appeals reach the Court within special jurisdiction ordered by Congress, it would take the votes of at least five Justices to dispose of the case, either way. It would not be enough if four Justices did not vote for review. The Court is also under orders from Congress to handle such appeals on an expedited basis.

Wisconsin Right to Life, Inc., the advocacy group that wanted to broadcast the three ads at issue, plans to file its response to the new appeals on Monday. As a result, the cases are expected to be considered by the Justices’ Conference next Friday. If, as expected, the Court accepts jurisdiction, the case could be heard and decided in the current Term, well in advance of the 2008 federal campaigns. That was the suggestion of both the FEC and Wisconsin Right to Life.

This controversy arises under a provision of the Bipartisan Campaign Reform Act that forbids “electioneering communications” by corporations and labor unions using their own treasury funds, if the ad mentions a clearly identified federal candidate within 60 before a general election and 30 days before a primary election. The Supreme Court upheld that provision against a facial challenge in McConnell v. FEC in 2003, but the Court ruled last year in Wisconsin Right to Life v. FEC — the case that has now returned to the Court — that constitutional challenges could be made to the ban as applied to specific ads.

In a 2-1 ruling Dec. 21, the three-judge District Court in Washington, D.C., ruled that it would be unconstitutional for Congress to have banned “genuine issue ads.” Those are ads, the panel said, that discuss a public issue without making a direct link between the exact words and images the ads uses and the fitness or lack of fitness of a specific federal candidate on that issue. It ruled that the three Wisconsin Right to Life ads did qualify for this protection. The ads were crafted to discuss Senate filibusters of judicial nominees, mentioning Wisconsin Democratic Sen. Russ Feingold, who was running for reelection in 2004.

In the FEC’s new appeal, it argues that this controversy “presents issues of substantial and recurring importance concerning the framework for determining” whether federal law is invalid as applied to specific ads that qualify as “electioneering communications.” “The FEC and the regulated public need guidance from this Court,” so the case should be reviewed, it adds In a footnote, however, the Commission argues that this case is moot. The footnote, though, went on to suggest that the mootness issue could be considered in the Court’s review of the entire case.

The appeal by the four members of Congress argues that, even though the District Court said it was ruling only on the specific WRTL ads, “its holding effectively creates a massive loophole in the ‘electioneering communications’ provisions for issue advertisements that do not, on their face, contain language expressly promoting, attacking, supporting, or opposing candidates.” It opens the door, their appeal went on, to “widespread circumvention” of the ad ban. The decision, the appeal said, “turned back the clock to the era when ‘magic words’ prevailed,” limiting regulation of broadcast ads solely to those that expressly said to vote for or against a candidate.