Many of the plaintiffs, including the Center, have already appealed each section of BCRA upheld by the lower court... High Court Refuses to Block McCain-Feingold Ruling on Issue Ads

The Supreme Court refused to intervene on an emergency basis Tuesday to stay parts of a lower court's ruling upholding federal restrictions on advocacy groups that wish to air political issue advertisements. Chief Justice William H. Rehnquist denied a request, made by the National Rifle Association (NRA), to block the three-judge panel's ruling that upheld sections of the Bipartisan Campaign Reform Act (BCRA) prohibiting interest groups from running television or radio advertisements that either "promote or support ... or attack or oppose a candidate for [Federal] office" with money from their general treasuries.

On May 2 in a lengthy, highly fragmented decision, the lower court struck down a broad restriction on issue ads that would have made it illegal for advocacy groups to simply "refer to a clearly identified candidate for Federal office" in broadcast ads within 30 days of a primary or 60 days of a general election. Nevertheless, the three-judge panel upheld, by a 2-1 vote, a backup provision that applies at all times banning interest groups from airing ads that are "not neutral" as to candidates for Federal office using "soft money" donated by political parties, corporations, labor unions, foreign citizens and others. As a result, the NRA asked the High Court to suspend that ruling so that the organization could broadcast issue ads right away urging Senator John McCain (R-AZ) to support legislation designed to restrict lawsuits against gun dealers who sell weapons later used in crimes.

The NRA's request was unusual not only because it was an emergency filing, but also because the group asked the Supreme Court to temporarily reinstate a restriction it had successfully argued was unconstitutional to the lower court. However, the NRA argued for such an inconsistent position because under the more broadly worded restriction it could at least run issue ads mentioning a candidate's name up until a month before a primary and two months before a general election.

The Chief Justice's refusal to stay the ruling of the three-judge panel still left the NRA and other advocacy groups with other options for temporary relief from the lower court ruling. Many of the plaintiffs challenging the constitutionality of BCRA, including the NRA and the Center for Individual Freedom, have already asked the lower court to block its own ruling while the cases are on appeal to the U.S. Supreme Court, and the lower court has not yet ruled on those requests. In addition, Chief Justice Rehnquist noted that the NRA could renew its request before the High Court if the lower court does not act by May 20 on those requests.

It now appears that the Supreme Court will not take up full review of the constitutional challenges to McCain-Feingold until its new term begins in the fall. But it is becoming clearer that when the High Court considers the landmark cases, each and every section originally challenged below will once again be contested. Many of the plaintiffs, including the Center, have already appealed each section of BCRA upheld by the lower court, and Solicitor General Theodore B. Olson filed the federal government's appeal Tuesday asking the Court to resurrect the parts of McCain-Feingold declared unconstitutional.

To read more about the lower court decision on the challenges to the Bipartisan Campaign Finance Reform Act, click here.

May 15, 2003
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