The Supreme Court on Monday largely threw out restrictions on issue-based broadcast ads run by labor unions and other groups in the run up to federal elections, a decision widely expected to thrust open the political advertising floodgates and foreshadow campaign finance decisions to come from the John Roberts-led high court.
“Unquestionably, [unions and corporate groups] are back in business,” said Larry Norton, a campaign finance lawyer and former general counsel at the Federal Election Commission. “This gives [the groups] wide latitude to run ads that identify candidates in the days running up to the election.”
In a 5-4 decision, the justices ruled that Wisconsin Right to Life, an anti-abortion-rights group, should have been allowed to run advertisements during blackout periods prior to a 2004 election. The group originally asked a federal court to temporarily lift a law enforced by the FEC, so it could run ads within weeks of Wisconsin’s primary election that asked viewers to contact Wisconsin Sens. Herb Kohl (D) and Russ Feingold (D) to criticize their filibuster of White House judicial appointments.
Under the Bipartisan Campaign Reform act, WRTL and other outside groups were prohibited from airing such ads within 30 days of a primary election and 60 days of a general election. Soon after BCRA’s passage in 2002, now-Senate Minority Leader Mitch McConnell (R-Ky.) and others led a court challenge against provisions of the new law. But the Supreme Court, then led by William Rehnquist, ruled in favor of the blackout period.
Writing for the majority on Monday, Chief Justice Roberts suggested the outside groups should be given the benefit of the doubt regarding issue ads run during election season. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor,” Roberts wrote.
The majority opinion, many observed, also includes a general outline that groups may use to determine whether their ads fall within the court’s new parameters. Republican campaign finance lawyer Jan Baran, who filed a brief on behalf of the the U.S. Chamber of Commerce in the case, said the a rule of thumb is not exceeding “express advocacy” bans — that is, saying “vote for” or “vote against.” Short of that, he said, groups should feel confident their ads fall within parameters established by Monday’s ruling.
“As long as your advertisement discusses policy and issues — even though it may mention a candidate’s name, but does not urge the viewer to vote for or against a candidate — then you have a constitutional right to run that ad, even if you’re a corporation or a union,” Baran said. “You can mention a candidate’s name and you have a constitutionally protected right to do so,” said Baran, as long as there is no “reasonable interpretation” that it could be seen as an “appeal to vote for or against a particular candidate.”
And with the 2008 presidential election just around the corner, Baran said it is not unreasonable to expect unions, business groups and others to run high-dollar ad campaigns staking out candidates’ position on every issue imaginable — liberal and conservative groups alike.
“I could see unions running ads whether the Republican nominee for president has a commitment to protect workers and provide information about their position on workers’ rights,” Baran said. “I could see conservative groups running ads questioning what Sen. Hillary Rodham Clinton (D-N.Y.) will do with health care. Or what ex-Sen. John Edwards (D-N.C.) might do with tort reform.”
Former Federal Election Commission Chairman Brad Smith, who had a Republican seat on the commission and now teaches at the Capital University Law School in Ohio, said the court’s decision may have a chilling effect on the agency, leaving FEC lawyers and commissioners gun-shy in enforcing current “vote-for” and “vote-against” prohibitions in issue ads — and opening the area up for a Supreme Court challenge of its own.
“The FEC will back off a little bit of its recent policies on ‘express advocacy,’” Smith said. “This case doesn’t address that directly but it sends a message to where the court is going. It may force the FEC to realize they can’t be quite so expansive with their definition of ‘express advocacy.’”
Cleta Mitchell, a Republican campaign finance lawyer, also said agency lawyers should take the high court’s decision as a course correction. Many FEC critics claim the agency has overstepped its bounds in recent years, regulating issues well outside of their charter. To them, the agency had it coming.
“It’s the first time in a long time that the Supreme Court has recognized that people besides journalists and nude dancers have First Amendment rights,” Mitchell said. “I hope the FEC will take heed … .”
‘Rick Hasen, an election law professor at the Los Angeles-based Loyola Law School who also runs electionlawblog.org, said the court’s decision Monday amounts to a “see-no-evil approach,” one which opens up the opportunity for any outside group to advertise if they make an argument “with a straight face that the ad is about something other than the election.”
“The commission now has to come up with a test that basically lets in almost every ad that avoids ‘express advocacy,’” Hasen said. “You can’t look at context … .”
And a return to the free-spending Wild West days of pre-BCRA — or at least the possibility of it — is just what campaign finance reform groups warned of following Monday’s ruling. Fred Wertheimer, president of Democracy 21, said with today’s decision, “the court has opened the door again for corporations and unions to evade this critical anti-corruption statutory provision.” He added: “Whether the door has been opened partially or completely remains to be seen.”
Other good-government reformers were equally critical of the ruling.
“This decision will mark the return of millions of dollars of unregulated special-interest money funding sham political ads,” said Bob Edgar, president of Common Cause. “If the Supreme Court is going to make it impossible to stop this flood of special interest money, it is all the more reason we need a voluntary system of publicly funded elections to provide a level playing.”
But more importantly perhaps, Hasen and Bob Bauer, a Democratic campaign finance lawyer, said the Supreme Court is unlikely to stop at Monday’s decision.
“What comes next are more challenges that chip away and chip away because the court is obviously inviting … challenges,” Hasen said. “I could see more and more challenges that make it harder for the court to uphold campaign contributions. I wouldn’t be surprised to see a challenge to the $2,300-per-person campaign contribution limit.
“There’s no question … within five to 10 years we will be living in an essentially deregulated campaign finance system … ,” Hasen said. “At best, you’ll have disclosure.”
Bauer said Roberts made good on earlier promises not to disrupt precedent unnecessarily, surgically carving around the court’s 2003 decision upholding BCRA’s “electioneering communications” provisions. Still, Bauer said the majority opinion contains significant clues that Monday’s decision was Day One in a new era for campaign finance law.
“It does not expressly overrule the advertising ban, but it comes as close as you can without doing so,” Bauer said. “There are suggestions here, snippets of analysis, bits of doctrine that suggest a high degree of skepticism about the degree to which campaign finance regulation has progressed and developed overall.
“You have very clearly a very different atmosphere that this decision creates,” Bauer continued. “Many years from now [Monday’s ruling will signify] a major shift in the court’s thinking on these issues. This opinion reflects a majority of the court that is prepared to apply a very skeptical standard to campaign-finance-related speech restrictions.”
The court’s dissenting opinion echoed observations by Bauer, Hasen and others that striking down this portion of BCRA may be a harbinger of things to come. Writing for the minority, Associate Justice David Souter said the ruling may have unintended consequences that stretch far beyond whether a state affiliate in Wisconsin should have been able to run a few ads criticizing judicial filibusters.
“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. “It is only the legal landscape that now is altered, and it may be that today’s departure from precedent will drive further re-examination of the constitutional analysis: of the distinction between contributions and expenditures, or the relation between spending and speech … .”
Such ideologically opposed groups as the U.S. Chamber of Commerce and the AFL-CIO both cheered the decision as one that would allow them to take off the BCRA-imposed muzzle in the run-up to elections.
“We’ve always felt that McCain-Feingold was unduly restrictive in this area,” said the AFL-CIO’s Bill Samuel. “We think citizens should be free to express themselves through issue ads.”
Big business and union advocates also hailed the decision for what they see as possible ramifications beyond campaign finance law. “This court will tip the balance in favor of the speaker instead of the censor when it comes to the First Amendment,” said Steven Law, the chief legal officer and general counsel for the U.S. Chamber of Commerce. He called the decision a “hopeful sign” that could keep lobbying and other reforms in check, depending on what limits, if any, they place on speech.
“The government’s zeal to regulate First Amendment activity is going to meet a greater level of scrutiny under the Roberts court than it has in the past,” Law said.
Laurence Gold, who is an associate general counsel for the AFL-CIO, said the court’s decision in this case is a “breath of fresh air” after the 2003 decision in a challenge to BCRA by McConnell. In that case, Gold said, the Supreme Court “took a very cramped view of the First Amendment.”
It isn’t yet clear exactly how unions and business groups will respond to the change, though.
Quentin Riegel, vice president for litigation at the National Association of Manufacturers, said the group is often lobbying hotly contested issues in the 60 days before a general election or the 30 days before a primary.
Before the court’s decision Monday, Riegel said, NAM wouldn’t be able to mention a Member’s name in an issue ad, if that Member also were on the ballot. Monday’s decision should change that, allowing a group to urge its members or other viewers to contact a Member to express their views on a specific legislative issue.
“We have no immediate plans to do any ads, but if there are very important issues where we need to go on the air and tell the public what’s happening, then definitely we would want to be able to use the names of the Senators or Congress Members,” Riegel said.
Law agreed. “There is a huge amount of legislative activity before an election,” said Law, who in the 1990s was a campaign finance legislative aide for McConnell. “What this court did that’s very, very important is [to say] that bona fide issue advocacy is not subjected to the restrictions in the electioneering prohibition.”