FEC vs. Wisconsin Right to Life

On June 25, 2007, the Supreme Court ruled 5-4 that the Federal Election Commission (FEC) erred in baring the Wisconsin Right To Life (WRTL) organization from broadcasting three issue ads during the 2004 election campaign. The three ads had addressed the concern of the WRTL to stop the Senate filibustering of the appointment of federal judges. The FEC had ruled that these ads were the functional equivalent of express advocacy because they implicated Senator Feingold, who was supportive of the filibusters and who was running for re-election. The U. S. District Court for the District of Columbia found in favor of WRTL, and overturned the ruling of the FEC; the court ruled that the three ads were not “express advocacy” ads and were not the “functional equivalent” of express advocacy. The Supreme Court affirmed the ruling of the District Court.

This is an important ruling because it effectively overturns part of the McCain-Feingold, Bipartisan Campaign Reform Act of 2002 (BCRA). Just three years ago, the Supreme Court ruled (5-4) in McConnell v. Federal Election Commission, 540 U.S. 93 that the BCRA was constitutional. For those who have followed this issue for some time, you may recall that after its passage in Congress, there was considerable disappointment among conservatives that President Bush did not veto the bill. Some thought that the President may have been counting on the Supreme Court to invalidate the law. This writer, for one, had predicted that the Court would find the BCRA to be an unconstitutional limitation on speech that is protected under the First Amendment. But, by the narrowest of margins (5-4) the Supreme Court upheld the BCRA.

The issue that was before the Court in FEC v. WRTL addressed one aspect of BCRA—issue ads that are aired by corporations during the blackout period, 30 days before a primary and 60 days before a general election. The WRTL wanted to run their three issue ads during the regulated period even though they acknowledged that the BCRA prohibited their broadcast. The WRTL argued that the issue ads were protected speech that must be permitted regardless of the prohibiting language of the BCRA. The Supreme Court agreed.

This case is so significant because it is very difficult to distinguish between issue ads (which are not barred by the BCRA) and express advocacy ads for or against specific candidates for election (which are barred by the BCRA). The difficulty to distinguish the two is demonstrated in the WRTL case. While the wording of the ad addressed an issue and did not directly encourage voters to vote for or against any candidate, the effect of the ad was to criticize Senator Feingold for supporting a filibuster of a Senate vote on the President's judicial nominees. Thus, the effect of the WRTL ads was to indirectly criticize a candidate. But five of the Justices upheld the right of WRTL to broadcast its issue ads regardless of whether the effect might be to help or hurt a particular candidate.

But the Court was not unified in the reasoning for this ruling, and that makes the case even more intriguing. Chief Justice Roberts and Justice Alito reasoned that the McConnell ruling of three years ago had preserved for corporate speakers a right to broadcast issue ads during the blackout period so long as they were not “express advocacy” or the “functional equivalent” of express advocacy. Then, Justice Roberts reasoned that an issue ad should not be deemed the functional equivalent of express advocacy unless the ad “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This, of course, is an extremely broad test that would protect almost all issue ads from being found to “express advocacy.” This, broad standard, that would immunize most issue ads from the reach of the BCRA is so protective of issue ads that all seven of the other Justices argued that it would effectively overturn the McConnell case. That's where Justices Scalia, Kennedy and Thomas come in; they wanted to specifically overturn that portion of the McConnell case; and for that reason they joined in a concurring opinion (authored by Justice Scalia) that ruled in favor of WRTL, but they would invalidate part of the McConnell ruling. This left the remaining four Justices complaining in their dissent (by Justice Souter) that the Court had erred by effectively overturning a major part of the McConnell case by invalidating Section 203 of the BCRA.

Where does that leave us as the 2008 Presidential Campaign is fast upon us? The BCRA remains good law, but the ruling in FEC v. WRTL effectively guts it with respect to corporate issue ads.Personally, I prefer Justice Scalia's reasoning, but the reasoning of Chief Justice Roberts is not bad either. And that's what you get with a plurality decision—more than one rationale in support of a specific ruling. In any event, this ruling is an important victory for fundamental freedom of speech rights.

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