From The Nation
By Morton Mintz

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.

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