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The Supreme Court on Monday weakened an important provision of the McCain-Feingold campaign finance law that strictly limited ads paid for with corporate and union money within 30 days of a primary and 60 days of a general election.
Justice Samuel Alito, the court’s newest member, was a pivotal player in the decision, siding with the narrow five-justice majority to rule that certain restrictions on corporate and union television and radio ads violated the First Amendment. The court weakened the provision in the law that strictly limited ads paid for with corporate and union money within 30 days of a primary and 60 days of a general election. It ruled that the law violated the First Amendment rights of Wisconsin Right to Life, which was prevented from running ads prior to the 2004 election urging voters to contact Democratic Sens. Herb Kohl (Wis.) and Russ Feingold (Wis.) about a filibuster of judicial nominees. Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas wrote a concurring opinion that called for striking down any restrictions on corporate and union funded advertising within 30 days of a primary and 60 days of a general election, but their views did not attract majority support. Senate Minority Leader Mitch McConnell (R-Ky.), the upper chamber’s leading opponent of campaign finance restrictions, heralded the decision.“Prior to this ruling, citizens were allowed to speak their minds except for just before an election — this ruling corrects that obstacle to free speech,” McConnell said in a statement. “This decision is a victory for free speech and confirmation that grassroots advocacy organizations have the same free speech rights as all Americans.”
The McCain-Feingold law, formally called the Bipartisan Campaign Reform Act of 2002, banned corporate- and union-funded electronic ads that mentioned a candidate’s name within 30 days of a primary or 60 days of a general election. The decision opens the door for corporations and unions to run ads similar to those involved in the case. The court, however, upheld limits on ads that expressly advocate for the election or defeat of a candidate. The strict regulations on corporate and union funding of these types of ads remain in place.
Election-law experts said they anticipated the court’s decision.
“It’s not surprising that Alito’s pivotal vote changed the outcome; I fully expected that result,” said Kenneth Gross, a campaign finance lawyer with Skadden, Arps, Slate, Meagher & Flom. “The prior decisions [on campaign finance restrictions] hung on [former Justice] Sandra Day O’Connor’s vote and Alito has now shifted the majority.”
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