WASHINGTON — A splintered Supreme Court on Monday undercut a key campaign-finance measure, ruling that the Federal Election Commission went too far when it banned pre-election ads prepared by Wisconsin Right to Life.
By 5-4, showing how the court is changing, justices concluded that the pre-election ads targeting Wisconsin Democratic Sens. Russ Feingold and Herbert Kohl in 2004 should have run.
"We give the benefit of the doubt to speech, not censorship," Chief Justice John G. Roberts wrote. "The First Amendment requires us to err on the side of protecting political speech rather than suppressing it."
The court's decision was one of the most closely watched of its nearly completed term. Its implications, however, aren't yet clear.
Roberts explicitly declared that the court wasn't overruling part of the campaign finance law. The provision in question blocks unions and corporations from directly financing political ads within 60 days of general elections and 30 days of primary elections.
Roberts said these broader questions could be addressed another day.
But three other conservative justices — frequent swing voter Justice Anthony Kennedy, Justice Antonin Scalia and Justice Clarence Thomas — declared that they were prepared to strike down the ban on pre-election ads as an unconstitutional infringement on free speech.
And the four dissenters, disputing Roberts' claim that the ruling was narrowly tailored to the Wisconsin case, said that the court effectively had overturned the campaign finance provision.
"After today, the ban on contributions by corporations and unions, and the limitation on their corrosive spending when they enter the political arena, are open to easy circumvention," Justice David Souter warned.
Unhappy supporters of the campaign-finance measure agreed.
"Any adman with a computer mouse and a modicum of creativity will be able to steer millions of dollars of special interest money into campaigns. It will be the Wild West all over again," said Michael Waldman, the executive director of the Brennan Center for Justice at New York University Law School.
Waldman interpreted Monday's decision as permitting corporations and unions to run pre-election ads unless their ads are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."
The ruling, however, doesn't affect the 2002 campaign-finance law's ban on the unregulated donations to federal candidates known as "soft money."
The ruling again illustrates the significance of the departure of former Justice Sandra Day O'Connor.
In December 2003, O'Connor wrote part of the opinion in which the court upheld the Bipartisan Campaign Finance Reform Act, which Congress passed in 2002. On Monday, O'Connor's replacement — Justice Samuel Alito — joined Roberts in ruling against regulators.
"It goes without saying that nothing has changed about the facts," Justice David Souter wrote for the dissenters. "It is only the legal landscape that now is altered."
The 2003 ruling dealt with the overall law. Monday's ruling dealt with the law as it's been applied in a particular case, which raises somewhat different questions.
Unusual alliances lined up on each side. The American Civil Liberties Union joined the AFL-CIO and the U.S. Chamber of Commerce to challenge the campaign-ad ban.
Under the law, unions and corporations could finance ads that promote or attack candidates within the prohibited pre-election period only by tapping separate political action committee money. Because special interest groups are incorporated, such as Wisconsin Right to Life, they're likewise covered by the campaign-finance law.
In 2004, Wisconsin Right to Life wanted to run ads challenging Senate Democrats who were filibustering President Bush's conservative judicial nominees.
The group's ads targeted lawmakers including Feingold, a liberal who supports abortion rights and also co-authored the 2002 campaign-finance law. The ads didn't urge people to vote against Democrats, but did say that filibustering senators were "backing up some of our courts to a state of emergency."
Under the 2002 campaign-finance law, Wisconsin Right to Life couldn't run these ads between Aug. 15 and the Nov. 2, 2004, election. Monday's ruling established that the pre-election ads could be banned only if the ads have no other reasonable interpretation than encouraging votes for or against specific candidates.