Supremes open the door for late-term issue ads


"Where the First Amendment is implicated, the tie goes to the speaker, not the censor," wrote US Chief Justice John Roberts, with the Supreme Court finding that a Wisconsin anti-abortion group was within its rights to run advertising before an election, even though the ads could have been construed as an attack on a senator up for re-election. It reversed a previous high court ruling on a part of the McCain-Feingold Bipartisan Campaign Reform Act.

Writing in dissent, Justice David Souter said, "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." Sen. John McCain (R-AZ) said, "It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election." The ruling is supposed to allow groups to express an opinion about an issue of concern, and does not free them to advocate for or against a candidate. The Wisconsin group's ads had been criticized because they addressed an issue not before Congress, and mentioned Wisconsin's two Democratic senators by name (Russ Feingold, who was running for re-election, and Herb Kohl), urging them not to filibuster judicial nominations from the president.

SmartMedia observation: Here are the two questions raised by this ruling. First, just how big will this loophole prove to be? It doesn't allow affected groups to engage in straight electioneering, but it could open up a cottage industry of cute wording to get a message across about a candidate while seemingly focusing on a particular issue. Second, how much additional pressure will this place on inventory in the last days before an election? Schedules are already jam-packed in battleground races. One good thing about these kinds of ads – they are not subject to lowest unit rate (LUR), nor are politicians ever likely to share this blessing with their corporate and union friends.