Supreme Court Advocacy Project Moots Issue Ad Regulation

BY APRIL WARD

James Bopp of the James Madison Center for Free Speech appeared before the moot court judges panel Friday in preparation for his anticipated argument before the United States Supreme Court in FEC v. Wisconsin Right to Life. Bopp represents Wisconsin Right to Life in this case concerning whether “genuine issue ads” are subject to the same regulations as candidate support ads under campaign finance laws. This Supreme Court Advocacy Project was sponsored by Dean Elena Kagan, The Federalist Society, and the American Constitution Society.

FEC v. Wisconsin Right to Life is expected to answer unresolved issues stemming from the Court’s previous decisions in McConnel v. FEC. Bopp argued that the McCain-Feingold campaign finance reform statute should not be allowed to silence grassroots lobbying efforts to encourage elected officials to vote on genuine issues of legislation.

“Genuine issue ads focus on a legislative branch matter and urge people to contact a legislator to take action on the matter,” Bopp said. “The defendants claim that there are no genuine issue ads, but we are talking about an ad focuses on a current legislative issue and not on a legislator’s character.”

Throughout his argument, Bopp responded to heavy questioning from the judicial panel consisting of Harvard professors Mark Tushnet and Charles Fried, Capital University professor Brad Smith, and former FEC Chairman Ben Ginsberg. When asked if a genuine issue ad would allow an attack on a legislator’s current position on an issue, Bopp said the ad would remain a genuine issue ad so long as it focused on a genuine legislative issue.

“The Court has never held that just because ad that might influence an election the court power to limit that speech.” Bopp said.

When questioned by the panel if Bopp’s test would create a safe harbor for candidate support ads to masquerade as issue ads, Bopp highlighted the differences between a genuine issue ad and a sham ad.

“Genuine issue ads are different from sham ads in several respects.” Bopp said. “Sham ads are often not about a current legislative issue, but focus on the characteristics of the person.”

The panel proceeded to question him on if the difference between a genuine issue ad and a candidate ad only hinged on “magic words” or “toxic words” used in the ad. He was also questioned extensively on whether the case could be considered moot.

Following the oral argument, the panel advised Bopp on ways to strengthen his argument. He also responded to questions from the audience.

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