Wisconsin Right to Life was argued before the U.S. Supreme Court earlier this week, an important case that will decide the constitutionality of the McCain-Feingold "electioneering comunications" restrictions on advocacy groups, at a minimum, as applied to Wisconsin Right to Life, an IRS Section 501(c)(4) pro-life advocacy organization. WRTL had published a communication critical of the two senators from Wisconsin for their pro-abortion votes in Congress, but because one of them was running for re-election in the time period of the communication, the FEC argues the communication was an illegal electioneering communication, even though there was no mention of an election in the communication.
At issue in the case is whether a controversial provision in McCain-Feingold, that regulates ANY broadcast communications mentioning a Federal candidate’s names 30 days before before a primary and 60 days before a general election, whether or not the communication comes from a political committee and regardless of the lack of words of express advocacy, or the intention of the group to not intervene in an election.
Liberal election lawyers are hoping the Supreme Court will adopt a subjective "effects" test, that judges a communication based on its potential to affect a Federal election. First amendment advocates argue for a "speech" test, that judges a communication based on the actual words in the communication, and whether or not the words clearly are intended only to intervene in an election campaign.
Wisconsin Right to Life is one of the most important cases on election speech since the landmark Buckley v. Valeo was decided by the Supreme Court in 1976. Initial reports from lawyers who attended the oral argument indicate the Court is leaning toward finding the law unconstitutional, at least as applied to Wisconsin Right to Life.