Thanks to HotAZItGets for posting the press release on this.

This is a reminder why pro-life conservatives do NOT trust John McCain:

McCain files brief opposing Wisconsin Right to Life

PRESS RELEASE
February 23, 2007
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685

FEC and McCain File Briefs Opposing Grassroots Lobbying by Wisconsin Right to Life

Today, two briefs were filed in the U.S. Supreme Court in the consolidated cases of FEC v. Wisconsin Right to Life (No. 06-969) and McCain v. Wisconsin Right to Life (No. 06-970). One brief was filed by the Solicitor General for the Federal Election Commission. The other was filed on behalf of Sen. John McCain, and other members of Congress, by lawyers from the “campaign finance reform” lobby.

Both appeals arose from the same case, WRTL v. FEC, but there are two appeals and two briefs because Sen. McCain, and other sponsors of McCain-Feingold (the Bipartisan Campaign Reform Act of 2002 or “BCRA”), chose to intervene in the case, thus putting their personal weight (and their lawyers’ efforts) against WRTL’s grass roots lobbying efforts. WRTL will respond in the U.S. Supreme Court to these two briefs on or before March 23.

WRTL involves an as-applied challenge to the McCain-Feingold “electioneering communication” prohibition, which bars corporations and labor unions from broadcasting ads mentioning the name of a federal candidate within 30 days of a primary and 60 days of a general election. In 2004, WRTL wanted to do grass roots lobbying ads about upcoming votes in Congress and claimed that the electioneering communication prohibition could not be constitutionally applied to its grass roots lobbying ads. On December 21, 2006, the district court agreed.

When the McCain-Feingold bill was proposed, its sponsors always promised that “genuine issue ads” (including grassroots lobbying) would not be banned.  For example, on March 23, 2001, Sen. Jeffords (who introduced the Snowe-Jeffords amendment that became the electioneering communication prohibition) declared on the Senate floor that the prohibition will not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes. The Snowe-Jeffords provisions do not stop the ability of any organization to urge their lawmakers on upcoming issues or votes. That is one of the biggest distortions of the Snowe-Jeffords provisions. Any organization can, and should be able to, use their grassroots communications to urge citizens to contact their lawmakers. Under the Snowe-Jeffords provision, any organization still can undertake this most important task.

Yet Sen. McCain now denounces the district court’s ruling that WRTL’s grass roots lobbying ads are not banned by McCain-Feingold.

Sen. McCain intervened in WRTL to stop WRTL from broadcasting ads asking people in Wisconsin to contact Senators Feingold and Kohl and urge them to vote against the burgeoning filibusters of President Bush’s judicial nominees. Sen. McCain also opposed WRTL’s effort to get court approval to broadcast a 2006 ad urging Senators Feingold and Kohl to oppose efforts to halt finalization of the Child Custody Protection Act (“CCPA”), which had passed by overwhelming margins in both houses of Congress but was prevented by parliamentary maneuvering from finally becoming law. The CCPA would have prohibited taking a minor across state lines for an abortion without parental consent or knowledge. Senator Kohl had voted for passage of the CCPA, but during the prohibition period, when WRTL was unable to effectively grassroots lobby, he switched sides.

Sen. McCain, and other members of Congress, also intervened in a companion case, Christian Civic League of Maine v. FEC, which is also now on appeal to the Supreme Court after being dismissed as moot. The CCLM case was conferenced by the Supreme Court on February 16, but the Court has issued no order concerning the disposition of the case.  It is assumed that the Court is holding the case for disposition after the decision in the WRTL case. In the CCLM case, Sen. McCain intervened to try to stop CCLM from broadcasting ads in support of the federal Marriage Protection Amendment, which defined marriage as between one man and one woman.

In both WRTL and CCLM, the efforts of the FEC and Sen. McCain were effective in gagging these citizen groups from broadcasting their ads when they could have made a difference on the issue involved.  Notably, the district court has now held that WRTL’s anti-filibuster ads were constitutionally protected, which does not change the fact that WRTL forever lost the opportunity to broadcast them when they might have made a difference.

James Bopp, Jr., lead counsel for both WRTL and CCLM, states: “The Framers of the Constitution would be appalled to know that incumbent politicians have passed a law to silence the people from effectively lobbying them about upcoming votes in Congress.” “Further, it is unseemly,” he adds, “for members of Congress to intervene in cases to silence the people from talking about them. This is particularly troubling when the grassroots lobbying was about the important issues of confirming President Bush’s judicial nominees, protecting minors from abortion, and protecting marriage. And it is troubling that Sen. McCain and his allies now denounce a court ruling protecting grassroots lobbying, when they themselves assured the American people that McCain-Feingold did not ban such efforts.”

McCain-Feingold was passed in 2002.  In 2003, the U.S. Supreme Court upheld the law on its face, in McConnell v. FEC. In 2006, the Supreme Court held, in the first appeal of WRTL v. FEC, that the McConnell decision did not preclude as-applied challenges to that law and remanded the case for a decision on WRTL’s as-applied challenge for grass roots lobbying.  On remand, the district court ruled in WRTL’s favor.

The briefs in FEC v. WRTL and McCain v. WRTL are available on the Supreme Court’s website, http://www.supremecourtus.gov and at www.jamesmadisoncenter.org. Oral argument is set for 10:00 a.m. on April 25th. A decision is expected by late June, the end of the Court’s present term.
James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.