A majority of the Supreme Court appears to be skeptical of the landmark McCain-Feingold campaign finance law's restrictions on pre-election issue ads that mention a candidate by name.
The law prohibits interest groups from running corporate-funded radio and TV ads that mention a candidate's name within 30 days of a primary or 60 days of a general election.
In arguments defending the law Wednesday, attorney Seth Waxman said that advocacy groups could still run the ads as long as they are financed with funds from political groups that comply with federal limits and disclosure requirements.
"What do you make of the fact that so many advocacy groups say that's impractical?" asked Justice Samuel Alito, whose vote could be pivotal because he took the place of Sandra Day O'Connor. She was one of five justices to uphold large portions of the campaign finance law in 2003.
Waxman responded by pointing out that one of those groups, the ACLU, never mentions a specific candidate by name and therefore hasn't been affected by the restriction.
But Chief Justice John Roberts, who has also joined the court since the 2003 ruling, wasn't moved by that.
"Just because the ACLU doesn't do that doesn't seem particularly pertinent to me," he said.
Free speech restriction argued
Last year a lower court relaxed the law's restrictions on issue ads that are run by corporations, labor unions and other special interest groups in the final weeks of a campaign.
That court sided with Wisconsin Right to Life, an anti-abortion group that had sought to run ads during the 2004 campaign, asking voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.
But because Feingold was up for re-election, the group could not run the ads in the final stretch of the campaign, under the law named for Feingold and Sen. John McCain.
Wisconsin Right to Life argues that McCain-Feingold unfairly restricts its free-speech rights. In its decision in December, the lower court ruled that groups may mention candidates by name in ads as long as they are trying to influence public policy, rather than sway an election.
The McCain-Feingold provision in question was aimed at preventing the common practice of issues ads that stopped short of calling for the election or defeat of a specific candidate, but that would cast a candidate in a positive or negative light. By doing so, sponsors of such ads had been able to circumvent limits on contributions in federal elections.
Wisconsin Right to Life argues it was not trying to influence an election, but rather rally people to lobby senators on an issue before the Senate.
On the other side of the case is the Federal Election Commission and a group of lawmakers led by McCain, an Arizona Republican who co-sponsored the McCain-Feingold law.
They argue that issue ads in the waning days of an election always have some influence on voters, and note that Wisconsin Right to Life's political action committee opposed Feingold's re-election.
The court is expected to rule in the case this summer.
The consolidated case is Federal Election Commission v. Wisconsin Right to Life, 06-969, and McCain v. Wisconsin Right to Life, 06-970.