The Wisconsin case challenging the Bipartisan Campaign Finance Reform Act's provision prohibiting "issue ads" which mention a federal candidate by name within 60 days of an election may have good chances of overturning that portion of the law, if the oral arguments before the Supreme Court are any indication. BCFRA passed SCOTUS' muster in 2003 by a 5-4 vote, and the balance of power on the issue may have shifted with the appointment of Mr. Justice Alito to replace Madame Justice O'Connor. Linda Greenhouse of The New York Times reports:

The ads, sponsored by Wisconsin Right to Life Inc., mentioned the state's two senators, both Democrats: Russell D. Feingold, a co-sponsor of the McCain-Feingold law, who was up for re-election, and Herb Kohl, who was not. The advertisements' focus was a Democratic-led filibuster of some of President Bush's judicial nominees. Viewers were urged to "contact Senators Feingold and Kohl and tell them to oppose the filibuster." The ads provided no contact information, instead directing viewers to a Web site that contained explicit criticism of Mr. Feingold.

A special three-judge Federal District Court here ruled that because the text and images of the ads did not show that they were "intended to influence the voters' decisions," they were "genuine issue ads" that the government could not keep off the air.

Solicitor General Paul D. Clement, arguing on behalf of the Federal Election Commission, told the justices that if these ads qualified for an exception to the law's ban on issue ads that mention a candidate for federal office right before an election, so would many or most others, leaving the statute "wide open."

Describing the ads as typical of those the court had reviewed when it rejected the initial challenge to the law, Mr. Clement said that a finding that these could not be regulated "just seems inconsistent" with the earlier ruling.

Chief Justice John G. Roberts Jr. turned the solicitor general's argument against him. It was Mr. Clement who was being inconsistent, the chief justice said, noting that in an earlier phase of this case a year ago, the Supreme Court ruled that the provision could be challenged "as applied" on a case-by-case basis.

Read the whole article at the link above. Too bad Roberts and Alito weren't on the Court when the issue first came before SCOTUS in 2003. Both men tend to honor precedents, especially one so recent, so it is unlikely they will seek to void the entire law. However, this provision seems to be on the chopping block, and for good reasons.

It boggles the mind that anyone could see ads mentioning federal candidates before an election as anything BUT protected political speech under the First Amendment.