Yesterday’s decision in Wisconsin Right to Life v. Federal Election Commission is a welcome holiday present for the Free Speech Community. It is a modest present, to be sure, more of a stocking stuffer than a great big box under the tree, but it is a very nice present nonetheless.
The facts are described in the opinion. But a quick rundown: McCain-Feingold limited the ability of incorporated groups, including such non-profit membership groups as Wisconsin Right to Life ("WRTL"), to run broadcast ads even mentioning a candidate in the 30 days before a primary or the 60 days before an election. This is true even though Congress is often in session during these periods, debating and voting on important issues. In December 2003, in McConnell v. FEC, the Supreme Court upheld this provision (and most of the rest) of the law against a facial challenge.
In 2004 WRTL sued on the basis that even if the law was generally constitutional, it was unconstitutional as applied to WRTL’s ads. A 3-judge district court rejected WRTL’s plea in 2005, holding that the McConnell decision precluded "as applied" challenges, but early this year the Supreme Court unanimously reversed and remanded the case to the lower courts to determine if WRTL’s ads would qualify for an as applied exception. The decision, though limited in scope, was important – it was the first time in a decade that the side arguing for the First Amendment had emerged victorious from a Supreme Court decision on campaign finance law. CCP filed an amicus brief in that case, joined by the Cato Institute, the Reason Foundation, the Goldwater Institute, the Institute for Justice, and the Claremont Institute Center for Constitutional Jurisprudence.
Yesterday’s decision was on the remand of that case. The Court (with Judge Richard Leon writing for the majority) held that WRTL’s ad – described in detail in the opinion – merited an as applied exception to the law. The decision should not be overstated. The Court specifically noted that the ads urged voters to call both of Wisconsin’s senators – Russ Feingold, who was up for re-election, but also Herb Kohl, who was not – about a pending legislative issue, judicial filibusters. "The ads do not comment on either Senator’s past or current position regarding this practice." The ads, "neither reveal either Senator’s thinking on the issue, nor reference Senator Feingold’s upcoming election contest." (Op. at 16-17).
Importantly, the Court rejected the notion that it (or the FEC) ought to conduct a detailed analysis of the subjective intent of WRTL in running the ad. The Court noted that doing so would require, "at a minimum," that the FEC depose the decision makers (whoever those might be) "in advance of the advertisements airing." (Op. at 17). It would require hiring "expert witnsses, on both sides, to speculate" on the subjective intent of the organization. (Op. at 17). The court added that, "Common sense, if nothing else, dictates that requiring such prerequisites" before clearing an ad to be aired, "is both practically and theoretically unacceptble." (Op. at 17-18). In this Judge Leon’s opinion demonstrates the type of common sense lacking in the Supreme Court’s McConnell opinion. But common sense rarely being sufficient in law, the Court went on to explain why the judgement had to come from the four corners of the ad itself. (Op. at 18-20).
The Court then held that this ad was not the equivalence of "express advocacy," that the Supreme Court has long allowed to be regulated (Op. at 22), and that that being the case, the government lacks a compelling interest to justify the prohibition. (Op. at 23-26). Overall the analysis is tight and well-reasoned.
Professor Hasen voices the concern that, "if upheld by the Supreme Court, could bring us back to the days before Congress passed McCain-Feingold (or BCRA–the Bipartisan Campaign Reform Act)." This is probably an overstatement, at least in the sense that this decision alone doesn’t get us there. The Court looked at five elements of the ad:
1. Does it describe a legislative issue that is currently or likely in the near future to be the subject of legislative scrutiny;
2. Does it refer to the prior voting record or current osition of the named candidate;
3. Does it exhort the listener to do anything other than contact the candidate about the issue;
4. Does it promote, support, attack or oppose the candidate; and
5. Does it refer to the upcoming election, candidacy, or party of the candidate.
Presumably, the answer must be yes to the first question, and no to the last four. That is pretty narrow territory if you think about it. Virtually none of the issue ads so popular prior to McCain-Feingold would fit in this description. It’s hard to see why anyone would run one of these ads in an effort to influence an election. Indeed, it’s hard to see how you could much influence an issue. Back to the days before McCain-Feingold? Not even close.
But that is not to say that the decision is insignificant. Professor Hasen says, "the Supreme Court’s decision in this case could be the next step toward a deregulated campaign finance system." That is definitely true – even a summary affirmance could be considered a step toward a deregulated system. If will at least be a less regulated system, if this decision is upheld.
So naturally the "reform community" is up in arms, with the Campaign Legal Center and Democracy 21 already out of the box. The extremism of the "reform" community is again on display. When BCRA was up for debate, the sponsors of this provision of the law promised that it would not stop grassroots ads on issues. This summer FEC Commissioner Hans von Spakovsky fought unsuccessfully to get the FEC to adopt a regulatory exemption more or less along the lines adopted yesterday by the Court. Spakovsky noted the "reformers" promises, back when they were trying to get the votes to pass the law. Senator Jim Jeffords, who introduced the particular provision of McCain-Feingold at issue, said that the law would, "not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes… The Snowe-Jeffords provisions do not stop the ability of any organization to urge their members and the general public through grassroots communications to contact their lawmakers on upcoming issues or votes… Any organization can, and should be able to, use their grassroots communications to urge citizens to contact their lawmakers. Under the Snowe-Jeffords provisions any organization still can undertake this most important task."
The CLC statement is curt and without detail. The Democracy 21 statement is long and interesting for what it doesn’t say. At no point does it offer any reason why prohibiting ads such as WRTL’s is a good idea. It is a perfect example of where the extemist reform community now is – regulation for regulation’s sake.
There is one other small element to the decision we think may be worth noting. The Court wrote, "BCRA regulates neither references to, nor the content of, advocacy-based web sites." (Op. at 20, n. 18). Of course, any rule that regulates on the basis of what is said – mentioning a candidate, express advocacy, whatever – is regulation of content. We’re not sure if the Court really meant such a broad statement, and it is just dicta. But in light of the successful suit by BCRA House sponsors Chris Shays and Marty Meehan to force the FEC to regulate websites, we thought it interesting.
For now, this decision is a welcome little holiday treat for First Amendment advocates. We congratulate WRTL and its counsel, Jim Bopp. the decision, however, will most certainly be appealed. Then we will see if Professor Hasen is correct. And that begs one other question: would it be so bad to go back to the pre-McCain-Feingold days, when non-profit citizens’ groups would not trigger regulation merely by mentioning a candidate’s name within 60 days of an election? If you are among the American who think McCain-Feingold has done nothing to end corruption, promote equality, or stop negativity – a majority. we suspect – this won’t alarm you. If you are among the substantial minority that considers McCain-Feingold’s 60 day ban a First Amendment abomination, you’ll consider that a positive outcome. Only those in the reactionary minority that wants to hold the line at all costs will find this modest decision particularly alarming.