The Magazine

The Right to Life Lobby vs. McCain

They're not fighting about abortion.

Apr 30, 2007, Vol. 12, No. 31 • By CHARLOTTE ALLEN
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Arizona senator John McCain, currently a bit behind Rudy Giuliani as Republicans' favorite presidential choice for 2008, is far and away the most consistently anti-abortion of all the top contenders. During his 20 years in the Senate (plus four in the House), he has never failed to cast his vote in favor of whatever abortion restrictions are arguably permitted under Roe v. Wade: bans against partial-birth abortion, abortions on military bases, transporting minors across state lines to obtain abortions behind their parents' backs, and government funding for abortion both in the United States and abroad (all but the transporting-minors bill have become federal law). In addition, McCain has voted to confirm every "strict constructionist" judge (that is, disinclined to find, à la Roe, a right to abortion and related activities enshrined in the Constitution) appointed by the various Republican presidents who have served during his tenure, including Robert Bork for the Supreme Court. In February McCain declared that Roe v. Wade ought to be overturned, and he was one of 35 senators who signed an open letter to President Bush earlier this year pledging their support for any veto by Bush of efforts by the Democratic-controlled Congress to change federal law on abortion. Planned Parenthood and NARAL Pro-Choice America, the leading abortion-rights advocacy groups, detest McCain and consistently award him ratings of absolute zero on their scorecards.

Nonetheless, McCain has a major problem with the nation's largest and most influential anti-abortion advocacy organization, the National Right to Life Committee. And the source of that problem is . . . not abortion at all. It's the McCain-Feingold Act, that set of restrictions on political advertising during election seasons that McCain (along with a number of Democrats) started pushing in 1995 and succeeded in enacting into federal law in 2002.

The National Right to Life Committee (NRLC) regards McCain-Feingold as a major hindrance to its mission of pro-life advocacy--and, pari passu, McCain himself as something close to a personal enemy. A so-far-successful constitutional challenge to a key portion of McCain-Feingold mounted by an NRLC affiliate, Wisconsin Right to Life, is pending in the Supreme Court, with oral argument set for Wednesday, April 25. At issue is a provision banning ads that mention the names of candidates for public office within certain "blackout periods" ranging from 30 to 60 days before an election--if funds from corporations or unions are used to pay for the ads. Abortion is the kind of neuralgic issue that most large corporations--the kind of influence-peddlers that are presumably the target of McCain-Feingold--tend to shy away from, and most donors to the NRLC and its affiliates are individuals of modest means and strong religious beliefs. Nonetheless, a small percentage of the NRLC's donations--a little over 2 percent--come from corporations (including nonprofits) and religious organizations (the figure is from the year 2003, when the NRLC took in $13.6 million in contributions, including $295,124 from corporations and organizations, according to its lawyers).

Wisconsin Right to Life argues that the blackouts prevented it from broadcasting ads in 2004 criticizing by name the state's two Democratic senators, Herb Kohl and Russ Feingold, for filibustering Bush's strict-constructionist judicial nominees--at a time when Feingold (the other named sponsor of McCain-Feingold, as it happens) was running for reelection. Although the Supreme Court upheld the constitutionality of McCain-Feingold on its face by a 5-4 vote in 2003 in a different lawsuit, Wisconsin Right to Life won a unanimous Supreme Court ruling last year allowing it to challenge the law's application to specific instances and then persuaded a special three-judge federal district court in December that the blackout period unconstitutionally impinged upon Wisconsin Right to Life's First Amendment right to engage in grassroots issue advocacy on behalf of its members.

Furthermore, the composition of the Supreme Court has tellingly changed, with the replacement of Sandra Day O'Connor, who cowrote the majority opinion in 2003, by the more clearly conservative Samuel Alito Jr. Only if the law's defenders can persuade five justices that Wisconsin Right to Life's 2004 ads were actually an underhanded stab at Feingold, or that the NRLC is a stalking horse for other, presumably more malign corporate interests (and thus, like them, should be required to run its ads through a PAC, which would exempt it from the blackout but subject it to closer regulation), does it seem likely that Wisconsin Right to Life won't prevail on at least some narrow ground.