WASHINGTON — A splintered Supreme Court on Monday undercut a key campaign finance reform measure, ruling the Federal Election Commission went too far when it banned pre-election ads prepared by Wisconsin Right to Life.
By a 5-4 margin that shows how the court is changing, justices concluded that the pre-election ads targeting Democratic Sens. Russ Feingold and Herbert Kohl in 2004 should have run.
"We give the benefit of the doubt to speech, not censorship," Chief Justice John Roberts Jr. wrote, adding that "the First Amendment requires us to err on the side of protecting political speech rather than suppressing it."
The court's decision was one of the most closely watched of the nearly completed 2006-2007 term. Its implications, however, are not yet crystal clear.
Roberts explicitly declared that the court was not overruling part of the campaign finance law. The provision in question blocks unions and corporations from directly financing political ads within 60 days of a general election and 30 days of a primary election.
Roberts said these broader questions can be addressed another day. But three other conservative justices, including frequent swing-voter Justice Anthony Kennedy, declared that he, Justice Antonin Scalia and Justice Clarence Thomas were already prepared to strike down the pre-election ad ban as an unconstitutional infringement on free speech.
And four dissenters, disputing Roberts' claim that the Monday ruling was narrowly tailored to the Wisconsin case, warned that the court had, in fact, effectively overturned the campaign finance reform provision.
"After today, the ban on contributions by corporations and unions, and the limitation on their corrosive spending when they enter the political arena, are open to easy circumvention," Justice David Souter warned.
At the least, the ruling illustrates, again, the significance of the departure of former Justice Sandra Day O'Connor.
In December 2003, O'Connor wrote part of the opinion in which the court upheld the Bipartisan Campaign Finance Reform Act passed by Congress in 2002. On Monday, O'Connor's replacement — Justice Samuel Alito Jr._ joined Roberts in ruling against regulators.
"It is only the legal landscape that now is altered," Souter noted.
The 2003 ruling dealt with the overall law. The ruling Monday dealt with the law as it has been applied in a particular case, which raises somewhat different questions.
Unusual alliances lined up on either side of the issue. The American Civil Liberties Union joined with the AFL-CIO and U.S. Chamber of Commerce to challenge the campaign ad ban.
Under the law, unions and corporations could finance ads within the prohibited pre-election period only by tapping separate political action committee funds. Because special interest groups are incorporated, like Wisconsin Right to Life, they are likewise covered by the campaign finance law.
In 2004, Wisconsin Right to Life wanted to run ads challenging Senate Democrats who were filibustering President's Bush's conservative judicial nominees.
The group's ads targeted lawmakers including Feingold, a pro-choice liberal who also happened to co-author the 2002 campaign finance reform law. The ads did not explicitly urge people to vote against Democrats, but did say filibustering senators were "backing up some of our courts to a state of emergency."
But under the 2002 reform law, Wisconsin Right to Life could not run these ads between Aug. 15 and the Nov. 2, 2004 election.
"The interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy," Roberts wrote.