US Political Ads Under Legal Spotlight

27 April 2007

WASHINGTON DC: The US Supreme Court is considering the constitutional implications of restrictions on pre-election issue advertisements that mention a candidate by name. Also what distinguishes such ads from lobby-group messages.

The Wisconsin Right to Life anti-abortion group is challenging a provision in the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold after its sponsors. The act prevents political ads from airing on television within 30 days of a primary or 60 days of a general election.

In July 2004, the pro-life group began running a series of TV commercials encouraging viewers to contact Russ Feingold and a fellow senator to oppose a filibuster on judicial nominations.

The ads coincided with Feingold's 2004 re-election campaign and the group was not allowed to air them during the blackout period, following which prohibition it sued.

The group argues it was not trying to influence an election, but to rally people to lobby senators on an issue under consideration by the Senate.

In the Supreme Court this week James Bopp, attorney for Wisconsin Right to Life, said there was "no link to an election" in the ads.

He contended they involved a forthcoming legislative matter and "votes by their two senators who they wanted to influence".

He added: "We believe those ads are classic grassroots lobbying ads specifically protected by the Constitution."

However, Solicitor General Paul Clement, argued the Supreme Court had already decided that Congress could regulate the vast majority of ads run during an election cycle. He said: "The ads took the form of advocacy."

The Supreme Court is expected to rule in the case this summer.

Data sourced from Adweek (USA); additional content by WARC staff