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Free Speech at Issue in Wisconsin Right to Life Ad Case*

by Brendan Coyne

*A correction was appended to this news brief after initial publication.

Nov. 15, 2005 – Citing the importance of protecting the right of groups to engage in political advocacy, the public interest group Alliance for Justice yesterday announced that it had filed a friend-of-the-court brief on the side of a Wisconsin right-to-life organization challenging federally imposed electioneering spending rules. The case, which has wound its way through the lower court system and is on the Supreme Court’s January docket, focuses on the ability of nonprofit organizations to directly mention candidates for office in election-time issue advertising.

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Noting that the Alliance "fundamentally disagrees with Wisconsin Right to Life, Inc. and the substance of their ads," in a statement yesterday, AFJ President Nan Aron said that the group filed the amicus brief because the Bipartisan Campaign Reform Act (BCRA) governing political advertisements contains spending restraints that "stifle free speech and impinge upon the constitutional rights of nonprofits."

In court papers, Wisconsin Right to Life asserted that the Federal Election Commission’s application of BCRA to ads in the summer of 2004 is an unconstitutional restriction on both the organization’s speech, and that of "grassroots lobbying communications generally." Earlier this year, the US District Court for the District of Columbia found in favor of the FEC.

The product of bipartisan efforts of Senators John McCain (R-Arizona) and Russell Feingold (D-Wisconsin) and passed in 2002, the BCRA imposes tighter restrictions on virtually every aspect of federal election financing, including rules prohibiting 501(c)(3) nonprofits from identifying candidates in ads 30 days or less prior to a convention or primary and up to 60 days before general elections. Known commonly as the McCain-Feingold Bill, the measure was roundly applauded by progressive, finance-reform and public-interest groups.

Public Citizen views the law as "the most significant amendment to [federal campaign finance law] in more than a quarter century." Following the 2003 Supreme Court decision upholding the McCain-Feingold law, Public Citizen President Joan Claybrook said the ruling "is a magnificent vindication of a decade of work by reform groups and key members of Congress who fought for its passage."

Public Citizen points to academic studies purportedly showing that the public rarely recognizes distinctions in issue ads versus campaign ads when candidate names are mentioned. This, the group insists, suggests that the BCRA’s electioneering communications provision is needed, putting it, and many other like-minded groups, in direct opposition to the Alliance for Justice’s stance.

The Alliance, in Aron’s terms, considers the restrictions "a blunt tool," charging that, by prohibiting nonprofit corporations from using their own money in ads mentioning candidates, it casts too wide a net in reforming campaign expenditures.

"If the Supreme Court does not protect the first amendment rights of nonprofits and declare this application of the law unconstitutional," Aron said, "many nonprofits will be forced to make the untenable choice between less effective avenues for grassroots lobbying or sitting out the legislative discussion altogether during critical times."


Minor Change:

The original version of this article indicated that the BCRA banned ads by "all groups" identifying candidates within certain parameters. In fact, it only bans ads by tax-exempt nonprofit organizations.

 | Change Posted November 18, 2005 at 09:33 AM EST

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The NewStandard ceased publishing on April 27, 2007.

Brendan Coyne is a contributing journalist.

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