U.S. Supreme Court Rules Provision Of Campaign Finance Law Unconstitutionally Applied In Wisconsin Right To Life Case

The U.S. Supreme Court on Monday ruled 5-4 that a provision of the McCain-Feingold federal campaign finance law used to bar Wisconsin Right to Life from running advertisements in 2004 was an "unconstitutional infringement" on the group's right to advocate on issues, the Washington Post reports (Barnes, Washington Post, 6/26).

WRTL in its lawsuit challenging McCain-Feingold was seeking permission to run television and radio advertisements within 30 days of a 2004 primary that mentioned Sen. Russell Feingold's (D-Wis.) name and focused on his opposition to several of President Bush's judicial nominees. The group claims that the campaign finance law's provisions prohibiting the use of interest groups' "issue ads" during the weeks preceding an election are unconstitutional.

A three-judge panel of the U.S. District Court for the District of Columbia in August 2004 unanimously rejected WRTL's challenge, and the group appealed the ruling to the Supreme Court. The Supreme Court in January 2006 said that when it previously upheld the law's provision concerning "electioneering communications" against a "facial challenge" in 2003, it did "not purport to resolve future as-applied challenges." The justices ordered the district court "to consider the merits of WRTL's" challenge. A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia in December 2006 overturned provisions of the law that restrict issue ads during the weeks before federal elections. The Federal Election Commission and a group of lawmakers led by Sen. John McCain (R-Ariz.), who is running for the 2008 Republican presidential nomination, argued for the provisions to be upheld (Kaiser Daily Women's Health Policy Report, 4/26).

Majority Opinion
"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Chief Justice John Roberts in the majority opinion wrote, adding, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor" (Washington Post, 6/26). He also wrote that the "First Amendment requires us to err on the side of protecting political speech rather than suppressing it" (Vicini, Reuters, 6/25).

According to the Post, Roberts established a "new rule" that states, "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." Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy joined Roberts in the majority. However, Kennedy, Scalia and Thomas said the entire provision of the law should be declared unconstitutional, adding that Roberts' test is "impermissibly vague," the Post reports. Alito said that he might agree that the entire provision be stricken if the enforcement of the test proves unworkable.

Dissent
Justice David Souter in the dissenting opinion wrote, "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." He added, "The court (and, I think, the country) loses when important precedent is overruled without good reason, and there is no justification for departure from our usual rule of stare decisis here." Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer joined Souter in the dissent, the Post reports (Washington Post, 6/26).

Comments
According to the AP/Boston Globe, some campaign finance experts said that although the decision applied specifically to WRTL case, the ruling has far-reaching implications. "I don't think Justice Roberts is naive," Richard Hasen, a professor at Loyola Law School-Los Angeles, said, adding, "He knows full well that the test that the court has articulated today will lead to a great deal of corporation- and union-funded election advertising" (Kuhnhenn, AP/Boston Globe, 6/26). Richard Pildes, professor of constitutional law at New York University, said the ruling is "likely to have dramatic effects on upcoming elections." He added that "we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard-core efforts to influence election outcomes" (Joshi, AFP/Yahoo! News, 6/25).














McCain said it is regrettable that the court created a narrow exception that allows corporate and labor expenditures to be used to target a federal candidate in the days and weeks before an election. "It is important to recognize, however, that the court's decision does not effect the principle provision of the (law), which bans federal officeholders from soliciting soft money contributions for their parties to spend on their campaigns," McCain said. Former Massachusetts Gov. Mitt Romney (R), who also is running for the Republican presidential nomination, lauded the ruling, Reuters reports (Reuters, 6/25). Former New York City Mayor Rudy Giuliani, another candidate for the nomination, said the ruling is a "welcome victory for free speech and personal liberty" (AP/Boston Globe, 6/26).

Related Editorial
The Supreme Court "without acknowledging that it was doing so, jettisoned [the] common-sense approach" to limit the "flood of corporate- and labor-funded campaign commercials masquerading as 'issue ads,'" a Washington Post editorial says. "The difficulty is that the new Roberts standard risks permitting a flood of corporate- and labor-sponsored advertising close to elections," the editorial says, adding that it will be "difficult to see how the more common kind of 'issue ads' that the court found so troublesome in its earlier ruling could now permissibly be stopped" (Washington Post, 6/26).


The majority opinion and dissent are available online. Note: You must have Adobe Acrobat to view this document.

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