WASHINGTON – The Supreme Court is trying to strike a delicate balance between free-speech rights for nonprofit groups and the federal government's desire to keep political campaigns clean.
But things didn't look so good for the nonprofits Tuesday when the high court appeared not to be swayed by an argument stating that nonprofit organizations that take stands on controversial topics like gun rights or abortion should be allowed to make political donations.
How the court rules could provide a glimpse into the anticipated showdown — expected to take place before this summer — over the broader campaign finance law that went into effect on Nov. 6. Opponents of the 32-year-old law, updated with stronger rules limiting contributions, say the law is unconstitutional because it puts a lid on free speech.
Advocacy organizations, which were spurred by the case surrounding a North Carolina anti-abortion organization, argue that their members should be allowed to pool their money and use it to support candidates friendly to their issues.
On Tuesday, the government, arguing on behalf of the Federal Elections Commission, said that if permitted, groups could be used to circumvent individual campaign donation limits and exempted from disclosing where the money comes from, opening up a grand opportunity for exploitation of the groups and manipulation of the political process.
The campaign finance issue, which dominated Congress early last year, is expected to consume much of the Supreme Court's time this year. An array of groups, including the national political parties, the American Civil Liberties Union, the National Rifle Association, the Christian Coalition and some labor unions, say the law, which bans unlimited contributions from special interest groups to national parties and restricts political advertising, stifles the First Amendment.
Defenders of the updated campaign finance law, including the FEC and bill sponsors Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., and Reps. Chris Shays, R-Conn., and Marty Meehan, D-Mass., say the measure protects the political process from undue influence.
A measure in the law which provided that any lawsuit on it would make it to the Supreme Court has left the judges awaiting the appeals court's decision on a challenge to the new limits.
Tuesday's case could give an indication of how the justices will rule.
"It's a warm-up. It involves the extent of constitutional protection for involvement in the political process and the role that advocacy groups play, just like McCain-Feingold," said James Bopp Jr., the attorney for North Carolina Right to Life Inc.
But Bopp may not enjoy the exercise. Justice Sandra Day O'Connor told him that a 1982 ruling in a similar case makes it difficult for justices to side with the anti-abortion group.
Several justices said Bopp's case would be stronger if the ban involved campaign spending instead of donations, since the court has ruled earlier allowing nonprofits to air commercials supporting or opposing federal candidates.
In that decision, the nonprofit organization did not take corporate money. Justice Ruth Bader Ginsburg noted that North Carolina Right to Life accepted some donations from companies.
Justice Antonin Scalia also didn't buy Bopp's argument that the ban hurts speech. Anyone who wants to give to a candidate can do so, he said.
"All you have to do is reach in your pocket and give them a dollar," he said.
The court's decision could have a major impact on the role of nonprofits in the electoral process. Currently, only individuals, political parties, political action committees and other campaigns can contribute to federal candidates and national party committees.
"It is this type of organization that's going to be the key player in elections and financing campaigns," Elizabeth Garrett, a law professor at the University of Chicago who has been studying campaign spending, said of non-profits. "We, as voters, might want to know what they're doing and who they're supporting."
Bush administration lawyer Paul Clement said advocacy groups are allowed to form political action committees to make donations. But groups are hesitant to do that because they would then have to open their books and make their records public.
Asked by O'Connor about the larger, pending campaign finance case, Clement said the court could deal with both because the issues raised in this case were "miraculously unaffected by the many reforms" approved by Congress.
The Supreme Court has been willing to uphold limits on contributions. In 2001, it ruled that political parties could not spend unlimited amounts of money if they coordinated their efforts with a candidate. And in 2000, the court voted to back Missouri's contribution limits to state campaigns.
The Associated Press contributed to this report.