US Supreme Court on Political Advertising, Faith-Based Policies

The US Supreme Court handed down two decisions on Monday that will allow large corporations greater influence on elections through political advertising, and protect the White House’s faith-based initiatives from further legal challenges.

Speaking for the majority in one 5-4 decision, Chief Justice John Roberts said that restrictions on television advertising funded by corporations and other organizations in the lead up to elections amounted to censorship of core political speech, unless the ads clearly urged voters to vote for or against named candidates.

This effectively strikes down a central tenet of the McCain-Feingold Act (formally the Bipartisan Campaign Reform Act 2002) which stemmed the flow of ‘soft money’ contributions and banned the broadcasting of corporate or union funded ads 60 days before general elections and 30 days before primaries.

Justice David Souter, one of the dissenters, warned against the flow of large sums of money into political advertising. “The ban on (soft money) contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly,” he 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.”

Monday’s decision arose from a case which involved a group called Wisconsin Right to Life, who were prevented from running political ads during the 2004 election which urged listeners to contact the state’s Democratic Senators Russ Feingold and Herb Kohl to insist that they not filibuster conservative judicial nominees.

Although both Republican and Democratic interests stand to benefit from Monday’s ruling, it was conservative and business interests who led the charge to lift the ban on corporate-funded political advertising.

“This decision is a clear vindication of the rights of all Americans, including the private sector, to speak out and publicly petition their government,” said Steven Law, the chief legal officer and general counsel for the US Chamber of Commerce.

The executive director of Wisconsin Right to Life, Barbara Lyons, also hailed the ruling and said, “In an election year, if groups want to urge people to communicate with their lawmakers about an issue, they can do so without going to jail.”

However, other groups said the decision would favor large corporations whose advertising would now hold considerable sway in elections.

“This is a big win for big money,” said Mary Wilson, president of the League of Women Voters. “Chief Justice Roberts has reopened the door to corruption.”

Kenneth Gross, a Washington-based election law attorney who represents corporations, expressed similar concerns. “The significance of it is, you can use soft money to do these ads. This is a clear shot over the bow by this court that there is going to be less regulation of money in politics. The fulcrum has now shifted.”

In another decision, the Supreme Court ruled that ordinary taxpayers cannot challenge the funding decisions of the White House Office of Faith-Based and Community Initiatives, created by executive order without Congressional approval.

A group of atheists and agnostics challenged the program’s funding as unconstitutional on the basis that it amounted to government promotion of religion, because it actively steers hundreds of millions of taxpayer dollars to religious organizations and thus violates the separation of church and state.

Since President Bush established the faith-based program in January 2001, secular groups have complained that program’s funding has favored religious organizations, who are invited to taxpayer-funded conferences and urged to apply and compete for federal funding – one of the program’s stated goals.

Explaining the court’s 5-4 decision, Justice Samuel Alito said, “It is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”

Although taxpayers were granted the right to sue if Congress funded programs that violate the separation of church and state in the 1968 case Flast v. Cohen, the court ruled that this is not applicable because the funding for the President’s faith-based program was “paid for out of general Executive Branch appropriations” and thus not directly funded by Congress.

On the dissenting side, Justice David Souter said, “There is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.”

Barry Lynn, executive director of Americans United for Separation of Church and State, agreed. “Taxpayers should be allowed to challenge public funding of religion, whether the money is allocated by Congress or the White House.”

Other advocates for separation of church and state were also disappointed by the ruling. Annie Gaylor, co-president of the Freedom from Religion Foundation, said the decision would serve to prohibit legal examination of church-state relations.

Meanwhile, President Bush said the decision represents “a substantial victory for efforts by Americans to more effectively aid our neighbors in need of help. The faith-based and community initiative can remain focused on strengthening America’s armies of compassion and expanding their good works.”

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