In FEC v. Wisconsin Right to Life, Court Upholds As-Applied Challenge to McCain-Feingold Act

In a contentious 5 to 4 decision, the U.S. Supreme Court ruled June 25, 2007 that the First Amendment protects a Wisconsin right-to-life group’s ability to broadcast issue advertisements naming political candidates in the days and weeks leading up to an election.

Section 203 of the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act, makes any broadcast of “electioneering communications” paid for by a corporation’s general treasury a federal crime. The law defines “electioneering communications” as any broadcast within 60 days before a primary election or 30 days before a general election that refers to a clearly identified candidate for federal office and targets the electorate.

In Federal Election Commission v. Wisconsin Right To Life, Inc., 127 S. Ct. 2652 (2007), the Court upheld the Wisconsin group’s as-applied challenge to Section 203 of the McCain-Feingold Act. The act prohibited the group from broadcasting advertisements in the days leading up to Wisconsin’s 2004 primary election that named incumbent Senator Russ Feingold, who was seeking re-election, and urged him not to filibuster President George W. Bush’s federal judicial nominees.

The right-to-life group filed a motion for declaratory relief in Federal District Court for the District of Columbia on July 28, 2004, arguing that as applied to its ads, the statute violated the First Amendment. The District Court denied the motion for injunctive relief and the group did not run its ads during the blackout period. The court held that McConnell v. Federal Election Commission, 540 U.S. 93 (2003), a U.S. Supreme Court decision that rejected a facial challenge to the statue, was broad enough to foreclose as-applied challenges. (See “U.S. Supreme Court Rules on Constitutionality of Bipartisan Campaign Reform Act” in the Fall 2003 issue of the Silha Bulletin.)

In 2006 the U.S. Supreme Court vacated the lower court decision and remanded, holding that McConnell did not resolve as-applied challenges. On remand, the District Court ruled the ads were “genuine issue ads” protected by the First Amendment. The Federal Elections Commission (FEC) appealed, and the case bypassed the Federal Appeals Court and went directly to the Supreme Court.

In his opinion for the court, Chief Justice John Roberts ruled that the case was not moot, even though the election was over, because of the short duration of the controversy and the likelihood that a similar situation would arise in the future.

Moving to the merits, Roberts, joined by Justice Samuel Alito, held that the ads the Wisconsin group wished to broadcast in the days and weeks before the 2004 election were issue ads. Relying on McConnell, Roberts held that express campaign advocacy, or its functional equivalent, could be regulated in accordance with the Constitution, but restrictions on genuine issue advocacy could not survive strict scrutiny. When applied to bar issue ads, section 203 of the McCain-Feingold Act violated the First Amendment.

In his opinion, Roberts articulated a new test for deciding whether an advertisement constituted issue advocacy or express advocacy.

“[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. [The Wisconsin group’s] three ads are plainly not the functional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad . . . . Second, their content lacks indicia of express advocacy . . ..”

The right-to-life group’s ads named Wisconsin Senators Feingold and Herb Kohl, who was not up for re-election, but they did not address the impending primary or urge Wisconsin voters to vote for or against any candidate. The ads also did not address Feingold’s political affiliation, challenger, “character, qualifications, or fitness for office.”

The two radio ads and one television ad feature characters waiting for important events, like a decision on a loan application and a wedding. Other characters interrupt the events with stories about fishing trips and hanging drywall, and then a voice-over implies those interruptions are like the Senate filibuster of President Bush’s judicial nominees. The ads are available on Wisconsin Right to Life’s Web site at

Roberts explained that the question in this case fell outside the scope of the McConnell opinion because the Wisconsin group’s ads could reasonably be interpreted as issue ads and not the functional equivalent of express advocacy. The McCain-Feingold Act can only be applied to bar the Wisconsin group’s ads if the government can show the regulation “is narrowly tailored to further a compelling interest.” Roberts found no compelling interest to justify banning issue ads.

Justice Antonin Scalia, in an opinion joined by Justices Clarence Thomas and Anthony Kennedy, went further than Roberts, arguing McConnell should be reconsidered. According to Scalia, no test can adequately distinguish between genuine issue ads and the functional equivalent of express advocacy.

Scalia argued that every articulated test to determine whether speech is express advocacy or issue advocacy is impermissibly vague, leaving potential advertisers unsure of whether their ads are prohibited or not. This confusion will chill protected speech until McConnell is overruled, Scalia wrote.

Even if there is a compelling interest in limiting corruption and the appearance that large corporations are buying elections with political advertising, section 203 is over-inclusive because it chills protected political speech. The Supreme Court has “rejected the principle that protected speech may be banned because it is difficult to distinguish from unprotected speech,” Scalia wrote.

Justice David Souter wrote in dissent; he was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

Souter began with an overview of the history of the campaign finance reform movement dating back to the start of the 20th century. He explained in great detail the corrupting influence that money has, or at least is perceived to have, on national elections, and the great lengths corporations have taken to get around past attempts at campaign finance reform.

The dissent also listed modes of political speech not restricted by the McCain-Feingold Act including newspapers, Web sites, and political action committees. Furthermore, the statute only applied to corporations, unions, and non-profits funded by corporate donations – the statute did not apply to non-profit organizations that are not funded by businesses or labor unions.

Souter argued that the right-to-life group, along with other organizations and candidates, made the senate filibusterers an issue in the campaign. The ad tied Feingold’s name to support for the filibusters, and urged criticism of his support. In the dissent’s view, the criticism functioned as express advocacy to vote against Feingold in the upcoming election. The ads’ “content and context” made their “electioneering purpose” clear.

The new test adopted by the majority to distinguish between genuine issue ads and those that are the functional equivalent of express advocacy constructively overrules McConnell, the dissent argued. Nearly every add prohibited by section 203 could be “reasonabl[y] interpret[ed]” as an issue ad.

“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, and the possibilities for regulating corporate and union campaign money are unclear,” Souter wrote.

The New York Times reported June 26, 2007 that some election law experts agree with Souter that the 2003 McConnell decision was effectively overruled. “Corporations received the victory that they did not achieve in 2003,’’ said Edward B. Foley, a professor at the Moritz College of Law at Ohio State University.

The case had united unlikely allies in support of the Wisconsin group, including the American Federation of Labor (AFL-CIO), the National Rifle Association (NRA), and the National Association of Realtors (NAR). The law restricts those groups from naming specific candidates in their advertisements because the AFL-CIO is a labor union, specifically targeted by the statute, and the NRA and NAR are non-profits receiving some of their funding from corporate donations or dues payments.

“[A] majority of the court has finally and emphatically embraced the simple truth, that the First Amendment abides no law that suppresses independent speech about legislators and candidates, at least absent an explicit call for their election or defeat,” said AFL-CIO President John J. Sweeney in a June 26, 2007 Washington Post story.

But other organizations, like the League of Women Voters, filed briefs in support of the McCain-Feingold Act. The league, a non-profit organization that does not support or endorse specific candidates, argued the exception adopted by the court “swallows” section 203 and permits “sham” issue advocacy that functions as express advocacy.

“This is a big win for big money,” League of Women Voters President Mary G. Wilson said in a statement, according to the Washington Post story. “Chief Justice Roberts has reopened the door to corruption.”

– Michael Schoepf, Silha Research Assistant



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This page contains a single entry by cla published on October 21, 2009 2:33 PM.

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