WASHINGTON—A newly recast and clearly divided Supreme Court took a fresh look at campaign-finance reform on Wednesday, in a case that will either curtail political speech or open the floodgates to more of it.
With two new conservative justices on board, the court has changed since a narrowly decided 2003 ruling upheld an ambitious campaign-reform law. Sharp questions Wednesday morning revealed that some of the law's restrictions on pre-election ads could now be on shaky ground.
"This is the First Amendment," Justice Antonin Scalia said during the hour-long oral argument. "We don't make people guess when their speech is going to be allowed by Big Brother or not."
The campaign law bans corporations and unions from directly financing campaign ads during blackout periods before primaries and general elections. The court's 2003 decision said this ban, on its face, didn't infringe on free-speech rights.
Now, though, the court is considering for the first time specific examples of how the pre-election ad ban has been applied. This could lead to different results
Chief Justice John G. Roberts, who wasn't on the court during the 2003 decision, shared Scalia's obvious skepticism about the ad restrictions. At one point, Roberts spoke derisively of regulations that "censor the speech" of citizens.
The court's other new justice, Samuel Alito Jr., didn't explicitly tip his hand during questioning Wednesday.
With Justices Stephen Breyer and David Souter speaking up on behalf of the ad restrictions, the stage is set for another close decision with serious consequences.
"This goes right to the heart of the participation of the public in the political process," said James Bopp Jr., an attorney for Wisconsin Right to Life.
It's a complicated issue. A trial judge in the case issued an opinion spanning 1,000 pages. And there's much at stake. One respected survey found 130 interest groups spent $500 million on campaign-year ads in 2000. It also has created strange alliances.
Diverse allies ranging from the American Civil Liberties Union to the National Rifle Association oppose the ad restrictions. On the other side, the League of Women Voters is joining with the Bush administration in support of the law.
The campaign-finance reform supporters say the law extends the decades-long ban on unions and corporations from directly contributing to political campaigns. Campaign ads can be tantamount to a contribution, supporters say.
"When it's during the election cycle (and) all of a sudden they start running the broadcast ads ... the timing suggests an intent to influence the election, not to engage on the issue," said Solicitor General Paul Clement.
Signed by President Bush in 2002, the Bipartisan Campaign Reform Act blocks unions and corporations from using general funds to pay for "electioneering communications." This means ads that refer to a "clearly identified candidate" for federal office, 60 days before a general election or 30 days before a primary.
Nonprofits, special-interest groups and advocacy organizations also are covered by the corporate ban.
Pre-election ads focusing strictly on issues, though, can be corporately funded. The immediate question now is whether three radio and television ads briefly run by Wisconsin Right to Life in the summer of 2004 were legitimate issue ads or something sneakier.
The anti-abortion group was urging Wisconsin residents to persuade Democratic Sens. Russ Feingold and Herb Kohl not to filibuster Bush's conservative judge nominees. Feingold co-authored the campaign-finance law, along with Republican Sen. John McCain of Arizona.
Souter and Breyer both stressed that Wisconsin Right to Life's real intention was to defeat Feingold, even though the ads never explicitly said so. The ads urged listeners to check out a Wisconsin Right to Life Web site.
"If you look at the Web site, it says defeat him, defeat him, defeat him," Breyer said. "That sounds like they have defeating him in mind."
Souter and Bopp, the attorney for Wisconsin Right to Life, jousted repeatedly over whether such context should be considered when justices evaluate pre-election ads. Bopp maintained that "the test is what the words say," since the Right to Life ads were never explicitly political.
Souter stressed, by contrast, that the full context is needed to know "what ... the words mean." This conflict over how to interpret an ad's meaning or intent could be at the heart of the court's ultimate decision.
Potentially, the court could reverse itself and throw out the entire pre-election ad ban. Scalia seemingly favors this—"maybe we were wrong last time," he said Wednesday—but an outright reversal is unlikely so soon after an earlier ruling.
A ruling is expected before the court adjourns in June.