NRL News
Page 6
June 2007
Volume 34
Issue 7

Supreme Court Upholds Free Speech In FEC v. Wisconsin Right to Life
By Dave Andrusko

On June 25 the United States Supreme Court upheld a challenge to a portion of the infamous McCain-Feingold campaign finance “reform” law, coming down foursquare on the side of free and vigorous speech.

Although narrowly won, the 5-4 majority opinion in Federal Election Commission v. Wisconsin Right to Life Inc. “gave meaning to its recognition [in the 2003 McConnell case] that there are ‘genuine issue ads,’ which incumbent politicians could not silence,” as James Bopp, Jr., lead counsel for Wisconsin Right to Life, put it.

The heavily watched case dealt with a key provision of what is formally known as the “Bipartisan Campaign Reform Act of 2002.” The free speech–stifling provision prohibited corporations, unions, and citizen advocacy groups such as Wisconsin RTL (WRTL) from using general treasury funds for “electioneering communications” — broadcast, cable, or satellite advertisements ads run within 30 days of a primary and 60 days of a general election — if the ad so much as mentions the name of a federal candidate running for election.

A major component of the ongoing controversy is the distinction between “issue advocacy,” which means discussing issues of public concern, and “express advocacy,” which encourages people to vote for or against a candidate. In its 2003 McConnell decision upholding much of McCain-Feingold, the High Court agreed that the law was constitutional in its limitations on “express advocacy” ads or their “functional equivalent.”

But last term the Court disagreed with a lower court that had concluded McConnell left “no room” for challenges to the law on a case-by-case basis (known in legal jargon as “as-applied”). “We now confront such an as-applied challenge,” Chief Justice John Roberts wrote in his majority opinion.

In 2004, WRTL wanted to broadcast TV ads during these “blackout periods.” The ads simply said that some senators in Washington were “using the filibuster tactic” to prevent an up or down vote on a number of President Bush’s judicial nominees. “Contact [Wisconsin] Sens. [Russell D.] Feingold and [Herb] Kohl and tell them to oppose the filibuster,” the ad said. One of those senators—Russ Feingold (D)—was running for re-election.

WRTL believed the ads to be an example of motivating grassroots citizens to communicate with their elected representatives and of an activity highly protected by the First Amendment. However, rather than risk criminal prosecution, WRTL filed an as-applied [case by case] suit and sought a preliminary injunction to permit continued running of its ads. That effort failed.

Eventually, a special three-judge Federal District Court ruled that WRTL’s proposed ads were “genuine issue ads”—the text and images did not show that they were “intended to influence the voters’ decisions”— and thus the government could not keep them off the air.

In its opinion, the panel concluded that WRTL’s as-applied challenge boiled down to the assertions that its ads were not “express advocacy” (or its “functional equivalent”) and that the government “has failed to demonstrate a compelling interest in regulating these ads.” The panel said, “we agreed with each of the plaintiff’s contentions.”

The panel wrote that the defendant — the FEC — had argued that an evaluation “should not be limited to a facial evaluation of the ad’s language, but a contextual analysis of the ‘intent’ behind the ad’s creation and the ‘effect’ that the ad is intended, and likely, to have on the voting public.”

Continuing, the panel concluded, “Simply stated, it appears to this Court that the judiciary, in conducting First Amendment analysis, should not be in the business of trying to read any speaker’s mind.” The panel warned, “Such an inquiry is unprecedented and not properly a part of any First Amendment analysis.”

Judges, the district court concluded, should restrict themselves to examining the “four corners” of the ad itself. The question was whether its language expressly advocates the election or defeat of a federal candidate. If it doesn’t, it passes muster as a genuine issue ad.

Roberts explained that the FEC had two alternative routes to defend the law. It could demonstrate that WRTL’s 2004 ads were express advocacy or their functional equivalent.

If it couldn’t, “It must then demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling interest. No precedent of this Court has yet reached that conclusion.”

Roberts concluded that WRTL’s ads “are plainly not the functional equivalent of express advocacy,” and that “The government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.”

In his 29-page-long opinion, Roberts offered a keen and analytical critique of the FEC and other parties supporting McCain-Feingold. “Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Roberts said. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Beyond the long-term importance of the overall critique, the most significant conclusion in Roberts’ opinion is that the only ads that can be kept off in the period covered under McCain-Feingold would be those “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This was crucial because supporters of McCain-Feingold insisted that in practice ads such as Wisconsin RTL’s are the functional equivalent of express advocacy and could be barred.

This argument drew Roberts’ most pointed comments.

“One expert testified on behalf of the FEC that ‘WRTL’s ads are especially effective electioneering ads because they are ‘subtl[e],’ focusing on issues rather than simply exhorting the electorate to vote against Senator Feingold,” Roberts wrote. “Rephrased a bit, the argument perversely maintains that the less an issue ad resembles express advocacy; the more likely it is to be the functional equivalent of express advocacy. This ‘heads I win, tails you lose’ approach cannot be correct.”

Roberts neatly summarized the approach of supporters of the law:  “Under appellants’ view, there can be no such thing as a genuine issue ad during the blackout period — it is simply a very effective electioneering ad.”

Justices Samuel A. Alito Jr., Antonin Scalia, Anthony Kennedy and Clarence Thomas sided with Roberts. The latter three would have gone further in revisiting McCain-Feingold.

In upholding the lower court’s decision, Roberts offered many ringing affirmations of the First Amendment, including this near the end.

“Yet, as is often the case in this Court’s First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself:  ‘Congress shall make no law...abridging the freedom of speech.’ The Framers’ actual words put these cases in proper perspective.”