SCOTUS Inserts Itself Into Campaign Finance Again
THe Supreme Court, in a unanimous opinion released moments ago, said that a Wisconsin pro-life group deserves to have a lower court determine whether an anti-abortion issue ad it ran in '06 mentioning Sen. Russ Feingold was legitimate.
The upshot of this decision:
The Court will probably have to write a new definition for just what constitutes a legitimate "issue ad." It also means that groups who accused of running "sham issue ads" will get the chance to prove their legitimacy to federal judges. (On the other hand, might this ruling also attach a presumption of illegality to such ads?)
Here's what election prof. Rick Hasen saus:
"This unanimous per curiam opinion makes essentially two points. First, that a footnote in the Supreme Court's earlier 5-4 McConnell opinion was not intended to preclude "as applied" challenges. That is, if corporate or union plaintiffs can prove that they are running "genuine issue ads," it can be unconstitutional to apply the electioneering communications provisions to them (at least insofar as barring the use of corporate or treasury funds to pay for these ads). Second, that the lower court opinion was unclear as to whether it held that the ad in question (one that attacked Senators Feingold and Kohl (only Feingold was running for reelection) for their position on the filibustering of judicial nominees) was really an election ad that McConnell held it was permissible to regulate.
"What is the significance of this ruling? In the short term, the greatest significance is that it allows the Supreme Court to put these issues over to another day. With Justice O'Connor leaving and a new Justice presumably coming in soon, the Court would have faced the possibility of reargument or, assuming Justice O'Connor would have recused, an affirmance by an equally divided Court. Reargument would have thrust the two newest Justices into a difficult position where their votes presumably would be dispositive."
I don't have a comment about this.