Federal Election Commission v. Wisconsin Right to Life / McCain, et al., v. Wisconsin Right to Life

Questions presented: Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation's use of general treasury funds to finance "electioneering communications" is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.

BY FARYL URY, MEDILL NEWS SERVICE

"Contact Senators Feingold and Kohl and tell them to oppose the filibuster," urges a narrator in the 2004 ad paid for by the anti-abortion organization Wisconsin Right to Life.

The advertisements encouraged Wisconsin residents to prevent anticipated filibusters of President George W. Bush's federal judicial nominees by calling Wisconsin U.S. Senators Russell Feingold and Herb Kohl, both Democrats.

The ads were fine. But their timing wasn't.

Because they aired during Feingold's November 2004 re-election bid, they violated a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) Consequently, the Federal Election Commission (FEC) banned WRTL's ads in the weeks leading up to the November election.

The reform act - also known as McCain-Feingold because of its bipartisan sponsors, Arizona Republican Sen. John McCain and Feingold - regulates contributions to federal candidates in an effort to control the influence of special interest groups on elections. The act is enforced by the FEC.

Specifically, unions and corporations such as WRTL are banned from using corporate money to pay for advocacy advertisements targeted at a specific candidate within the designated blackout period - 30 days prior to a primary election and 60 days before a general election.

In response to the ad ban, WRTL sued the FEC arguing that the ban violated the 1st Amendment by regulating campaign speech. WRTL unsuccessfully sought an injunction from a three-judge panel of the federal district court for the District of Columbia against the FEC ban.

"Incumbent politicians should not be able to shield themselves from lobbying about upcoming votes in Congress through campaign finance regulations," WRTL argued in the suit.

The group's aim is to "overturn a law that the Congress wrongfully and unconstitutionally passed to abridge the freedom of the people," WRTL attorney James Bopp Jr said.

WRTL asserts that its ads are a form of "grassroots lobbying" which encourage civic engagement. And because the ads in question do not try to influence the electoral process, the group agues, banning them is an unconstitutional limit on free speech in violation of the 1st Amendment.

But the question at hand isn't whether the law violates the 1st Amendment, said Larry Noble, who served as general counsel to the FEC for 13 years and was the former director of the Center for Responsive Politics, a pro-campaign finance reform organization. Rather, Noble said, the issue is whether the government has a compelling enough interest in regulating money to limit 1st Amendment rights.

Noble said the rationale of the law is to stop large aggregations of wealth from influencing elections. And the FEC argues that a change in the law would create a loophole and allow corporate and union money to influence federal elections exactly what the law was intended to prevent.

The U.S. Supreme Court agreed to hear the case on Jan. 19, 2007, after a lower court freed WRTL's advertisements from FEC control.

In December 2006, a special three-judge panel for the U.S. District Court for the District of Columbia declared in a 2-1 decision that the ads are exempt from the federal campaign finance restrictions because they were aimed at influencing public policy, not election results.

The panel ruled that an issue ad should be judged by a "facial evaluation" of language and images, rather than the "intent" or "effect" a message was intended to have on voters.

"The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech," U.S. District Judge Richard Leon wrote for the majority.

Leon was joined in the opinion by U.S. Court of Appeals Judge David Sentelle. U.S. District Judge Richard Roberts dissented.

"You're going to outlaw everything: Rush Limbaugh, the evening news, everything because it has an electoral impact," Bopp had told the three-judge panel.

WRTL notes that its ad made no reference to a specific political party or upcoming re-election bid. It also points out that it broadcast its ad prior to the prohibited period, not just during the period. Moreover, it explains that the ad refers to both a candidate, Feingold, and a non-candidate, Kohl.

This isn't the first time the case has come before the Supreme Court.

In January 2006, the high court overturned a federal panel's decision declining to hear the case for lack of jurisdiction. In sending the case back for a ruling on the constitutionality of the restrictions, the justices may be open to considering whether the limits might not apply to all political ads.

Bopp pointed to January's decision as a possible indication of future rulings, saying that when the high court initially heard the case, it rejected a lot of the arguments McCain and the FEC used. In its January decision, the Supreme Court said that though it upheld the constitutionality of the BCRA's limits on electioneering communications in McConnell v. FEC, the 2003 case "did not purport to resolve future as-applied challenges" to those limits.

In McConnell v. FEC, a case that challenged the BCRA on constitutional grounds, the Court addressed campaign finance regulations. In a 5-4 vote, it strengthened the BCRA's broadcast restrictions, arguing that the "vast majority" of issue ads allowed during blackout periods should be susceptible to regulation because they are the "functional equivalent" of electioneering.

"Corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates," wrote Justices John Paul Stevens and Sandra Day O'Connor in the Court's majority opinion.

McConnell v. FEC modified the landmark 1976 case Buckley v. Valeo, which had ruled that while limits on contributions to candidates were allowed, restrictions on independent spending,” such as issue ads,” were not.

Noble said striking down the broadcast ban would be "clearly contrary" to McConnell. He noted that McConnell did recognize that while the law might restrict genuine issue ads, the vast majority of the ads affected would be campaign ads.

But Bopp denied the notion that if WRTL wins, the Court will be rejecting the McConnell ruling. He said justices in the McConnell case decided that there are genuine issue ads that should be allowed to air even during blackout periods.

"It wouldn't be that the Supreme Court flip-flopped," Bopp said. "It would be that the Court gave meaning to what they said in McConnell."

Recent changes in the Court's makeup could lead to a departure from precedent, or at least a modification of it. Sandra Day O'Connor, who voted for the 2003 decision, has since been replaced by Justice Samuel Alito.

In terms of how the Court will rule, Noble said he does not think the justices will use this case as an opportunity to call into question the whole underpinning of campaign finance. Rather, he predicts the "Court will carve out limited exemption for certain types of activities."

Allowing a grassroots exemption might be a tactical way for the justices who support campaign finance laws, such as Justice Stephen Breyer, to ensure that the foundation of the basic law is not called into question, Noble said.

He also discussed the possible impact of the impending decision on finance regulation.

"If they rule that the law is constitutional as is, without any exemptions, then it really makes McCain-Feingold much, much harder to attack in the future and really cements its position," Noble said.

And that has some worried.

"In 2008 you'll have congressional elections and presidential primaries and elections," said Brooklyn Law School professor Joel Gora, who worked on the brief the ACLU filed in the first Supreme Court case. "It's a blackout that could last most of the year and that's too much of a restriction."

On June 25, 2007, a 5-4 Court found that BCRA unreasonably limits speech and violates the WRTL’s 1st Amendment rights.

“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Chief Justice John Roberts wrote for the majority. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

The justices’ individual views on the case, however, weren’t that clear cut. While concluding that WRTL’s ads are not the equivalent of campaign commercials, Roberts and Alito made clear they were not overruling McConnell.

The three other justices who formed the majority -- Anthony Kennedy, Antonin Scalia and Clarence Thomas – said they would have overruled the Court’s 2003 decision.

In dissent, Justice David Souter said the Court had in fact effectively done just that, noting: “After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention.”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer joined Souter in dissent.

As expected, the ruling provoked strong reaction from all sides of the campaign finance debate.

“This decision is a clear vindication of the rights of all Americans -- including the private sector -- to speak out and publicly petition their government,” said Steven J. Law, general counsel for the U.S. Chamber of Commerce. “This decision allows us to communicate freely on critical legislative issues, regardless of when during the election cycle they occur.”

League of Women Voters President Mary G. Wilson, whose group filed an amicus brief urging the justices to overturn the lower court’s ruling, derided the decision as “a big win for big money. Chief Justice Roberts has reopened the door to corruption. After this ruling, corporations can once again assist candidates and their campaigns through big-money negative advertising just before an election.”