Supreme Court Judges Appear to Side With Pro-Life Group on Ad Ban

National   |   Steven Ertelt   |   Apr 26, 2007   |   9:00AM   |   WASHINGTON, DC

Supreme Court Judges Appear to Side With Pro-Life Group on Ad Ban Email this article
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by Steven Ertelt Editor
April 26
, 2007

Washington, DC ( — At a hearing yesterday on a pro-life group’s lawsuit to overturn a part of the nation’s campaign finance law that prohibits certain political ads just before elections, the justices appeared to side with Wisconsin Right to Life. The organization says the ban on the ads is an unconstitutional limit on free speech.

The central question in the case is whether organizations like Wisconsin Right to Life can air legitimate grassroots lobbying ads within the blackout periods created by the McCain-Feingold campaign finance law.

Under the federal law, groups can’t air ads mentioning the names of candidates running for federal office within 30 days of a primary and 60 days of a general election.

"What do you make of the fact that so many advocacy groups say that’s impractical?" Justice Samuel Alito asked an attorney defending the law about the need to create a separate organization to fund the ad.

Seth Waxman, an attorney defending the law in court, said that not all of the groups that joined WRTL in the case are affected, according to an AP report. He cited the ACLU as an example.

"Just because the ACLU doesn’t do that doesn’t seem particularly pertinent to me," Chief Justice John Roberts responded.

Justice Antonin Scalia appeared to be most sympathetic to the pro-life group’s arguments.

"This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not," Scalia said.

"If you are going to cut off the speech, there ought to be a clear line," Scalia told Solicitor General Paul Clement, who defended the law for Congress. "And you’re not giving us any."

The high court upheld the McCain-Feingold campaign finance law in 2003 but has allowed challenges to specific parts of it like the ad ban. Roberts said several times that the court could rule the ad ban unconstitutional and still keep most of the law in place.

However, Alito replaced Justice Sandra Day O’Connor, who was the fifth and deciding vote in upholding the law and it’s possible that the court could invalidate the campaign finance statute entirely.

Justices Stephen Breyer and David Souter were the most supportive during the hearing.

The District Court for the District of Columbia ruled in favor of Wisconsin Right to Life in December of 2006, stating that it is unconstitutional to prohibit the airing of such ads.

The Federal Election Commission and Senator McCain and other members of Congress appealed to the U.S. Supreme Court. The Supreme Court is expected to hand down a decision prior to June 30.

Numerous organizations have joined Wisconsin Right to Life in seeking the First Amendment right to petition the government via grassroots lobbying ads without being subject to jail sentences.

The American Center for Law and Justice is one group supporting Wisconsin Right to Life and says the high court has an important opportunity to protect free speech by removing the blackout periods prior to primary and general elections that prohibit issue advertising.

“The Supreme Court should restore the ability of organizations to speak out on key issues in the days leading up to an election by removing a ban on advertising,” Jay Sekulow, the group’s director, told

"By banning issue advertisements by grassroots lobbying organizations in the days leading up to an election, there is a significant bias in place – putting these organizations at a distinct disadvantage in speaking out on the cultural and political issues that matter most," he added.

The ACLJ filed an amicus brief with the high court on behalf of itself and Focus on the Family.

The Supreme Court is hearing oral arguments in the consolidated cases of FEC v. Wisconsin Right to Life (No. 06-969) and McCain v. Wisconsin Right to Life (No. 06-970).

Related web sites:
Wisconsin Right to Life –
James Madison Center –