By a vote of 5 to 4, in December 2003, the Supreme Court upheld a major provision of the McCain-Feingold campaign finance act that prohibits corporations (and labor unions) from paying for ads that mention the name of a federal candidate, and that are broadcast 60 days before an election or 30 days before a primary.
That narrow ruling is now under challenge and could be overturned in the next few weeks, thanks to President Bush’s appointments of John G. Roberts Jr. as Chief Justice and Samuel A. Alito Jr. as an Associate Justice.
The case involves Wisconsin Right to Life, Inc., which campaigned to prevent the re-election of Senator Russell Feingold (D-Wis.), by taking large sums of money from corporations to buy phony "issue" ads on radio and television. The ads attacked Feingold and Herb Kohl, the other Wisconsin Democrat in the Senate, for blocking Bush judicial nominees. Under the 2003 decision, such bogus ads were the "functional equivalent" of campaign ads and thus banned by the McCain-Feingold provision.
During oral argument in April, Justice Stephen G. Breyer said that what Wisconsin Right to Life was "asking for is for us…to say either in practice or in theory, [the] McCain-Feingold campaign finance law is unconstitutional…If we agree with you in this case, good-bye McCain-Feingold." Justice Antonin Scalia said that Breyer had it right.
Roberts and Alito indicated they were willing to do what Wisconsin Right to Life wants them to do, which would be to open what a New York Times story described as "a significant loophole in the measure that would invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear."
But these self-described conservative justices would not be doing what the late Chief Justice William H. Rehnquist would have done, as he made clear in a 1978 case, First National Bank of Boston v. Bellotti, in which the issue was whether the freedom of speech guaranteed by the First Amendment was abridged by a Massachusetts criminal statute barring banks and business corporations from spending money to influence voting on referendum proposals.
In another 5-4 decision, the Court ruled for the bank. And in the April oral argument, Wisconsin Right to Life counsel James Bopp Jr. said that Bellotti upheld "corporate efforts to influence Legislative and Executive branch officials."
But Rehnquist was a Bellotti dissenter. "A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity," he wrote. "It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
Even more memorably, he said this: "I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries."