For pro-lifers, this year’s rulings by the U.S. Supreme Court brought good news — followed by more good news.

For starters, the court upheld the ban on partial-birth abortions in the spring. But in a far less celebrated case this summer, the court also upheld certain rights of pro-lifers — and all Americans — to speak freely about politicians around election time. And this latter ruling (Federal Election Commission v. Wisconsin Right to Life) may prove critical to pro-lifers’ ongoing efforts to protect the preborn.

At issue was a key part of the McCain-Feingold campaign reform law passed by Congress five years ago. Specifically, part of that measure banned groups from running broadcast ads that mention a federal candidate during 30- and 60-day blackout periods before primary and general elections.

“The reason for this law is that the incumbent members of Congress don’t like people talking about them, particularly if it involves being criticized,” said attorney James Bopp, who serves as legal counsel for several pro-family groups, including Focus on the Family Action.

Criticism of lawmakers is a basic free-speech right. And it’s especially important during campaign season, Bopp told Citizen — a time when “people are paying attention and where incumbents or candidates are particularly susceptible to the appeals of the public about particular issues.” As columnist George Will put it, “The blackout period silences speech when it matters most.”

McCain-Feingold silenced Wisconsin Right to Life (WRTL), the group whose case went to the U.S. Supreme Court, in 2004, when it tried running TV and radio ads calling on Wisconsin senators to end their blockade of pro-life judges.

“A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple ‘yes’ or ‘no’ vote, so qualified candidates don’t get a chance to serve,” the ad said. “It’s politics at work, causing gridlock and backing up some of our courts to a state of emergency.” It called on the audience to urge the state’s senators to end the filibuster.

But because one of those senators, Sen. Russ Feingold, was running for re-election, WRTL was not allowed to mention his name. WRTL filed a suit in federal district court that reached the U.S. Supreme Court, where Bopp argued on  behalf of WRTL that a blackout period before elections severely hindered grassroots groups from lobbying Congress.

“Using broadcast ads are the most effective means to reach the most number of people at the least cost,” Bopp told Citizen. “So it really impinges upon the ability of groups to effectively lobby their members of Congress about very important issues that are voted on during those periods of time.”

In June of this year, the Supreme Court agreed in a 5-4 ruling, with Chief Justice John Roberts writing the majority opinion.

The court ruled that the blackout period applies only when an ad urges a vote for or against a candidate. “We give the benefit of the doubt to speech, not censorship,” Roberts wrote.

FAST RESULTS
That broad language was important, according to Steve Hoersting of the Center for Competitive Politics.

“The court could have ruled narrowly on these ads and kept everyone guessing about future ads,” Hoersting told Citizen. “But they didn’t.” They upheld a broad principle, and other groups quickly benefited.

The Federal Election Commission (FEC) promptly settled two other pending court cases that had arisen during the 2006 elections — another case involving WRTL as well as a case involving the Christian Civic League of Maine. Each of them involved advertising that went further than the 2004 WRTL ad. Rather than staying neutral about the position of the politician, these ads identified the position of the politician and either praised or criticized it.

Yet the FEC agreed that the Supreme Court’s decision allows for such statements. “That carves out even more ground” for grassroots organizations to speak freely in issue ads, Hoersting said.

On the heels of these victories, Bopp — who represented the grassroots groups in all three cases — has petitioned the FEC to issue rules governing similar ads in the future. FEC officials will have little time to waste for rule-making. With presidential primaries just around the corner, the first blackout period for the 2008 elections will begin in December.

Political analysts vary greatly in their opinion on how much this decision will affect the 2008 political landscape. Some, such as Demos — a group that supports heavy restrictions on political spending — say WRTL will result in an explosion of corporate advertising around election time.

But former FEC Chairman Brad Smith doesn’t expect a dramatic change.

“Some of the folks who have argued in favor of limiting campaign speech in these ways over the years are saying, ‘The sky is falling! We’re going to have an avalanche of ads.’ I don’t think so,” he told the political publication E&E News.

Among other things, Smith noted, most of McCain-Feingold is still in place. And in a Wall Street Journal commentary, he observed that while WRTL “usefully prunes back one tentacle” of McCain-Feingold, “the bulk of over 400 pages of FEC regulations remain intact.”

For those who think the campaign-finance battles are mostly over, Hoersting warns that the real battle may be yet to come.

“The trend in campaign finance right now is toward taxpayer financing of elections,” Hoersting said. “It appeals to officeholders who are tired of raising money. But the answer to that is raising contribution limits.”

The courts have said that expenditure limits on campaigns are unconstitutional and that there can be such a thing as contribution limits that are too low. That has resulted in a push toward taxpayer-funded campaigns with spending limits and low contribution caps.

The key to making such a scheme constitutional is to get the candidates to voluntarily agree to such a system. Such a plan will be attractive to many incumbents since it generally takes an enormous amount of money to defeat an incumbent.

Despite the popularity of railing against “big money” in politics, that raises big red flags with Bopp.

“The problem is not too much money in politics,” Bopp said. “It’s too little.” Noting that many Americans can’t even name the vice president, he contended: “We need more spending on government in order for people to know more and be able to participate more effectively.”
Besides, he said, campaign-finance “reforms” have just pushed money into less accountable groups called “527s” that pop up and disappear from election to election. “McCain-Feingold pushed money out of parties and traditional advocacy groups — into these fly-by-night 527s.”

Then again, the days of McCain-Feingold may be numbered. In WRTL, three justices argued in a concurring opinion that a previous decision upholding the broader law should be overruled. And a fourth seemed open to doing so.

To advocates of free political speech, that day can’t come soon enough.

Paid for by Focus on the Family Action