January 23, 2006

About those issue ads.

Another important case issued today is the Wisconsin Right to Life case, which deals with the application of federal campaign finance laws:
It ordered a lower court to reconsider an "as-applied" challenge by an anti-abortion group, Wisconsin Right to Life Inc. The unsigned opinion, only two and a half pages in length, was announced by Chief Justice John G. Roberts, Jr. It ordered a three-judge District Court to consider the merits of the organization's complaint.

The decision came in a case argued just last Tuesday -- Wisconsin Right to Life v. Federal Election Commission (04-1581). The anti-abortion organization contends that the new federal campaign finance law's restrictions on political ads close to election-time is unconstitutional when it is applied to grass-roots lobbying efforts.
The Court's treatment of the case indicates it was ultra-easy. Or, as Rick Hasen opines:
In the short term, the greatest significance is that it allows the Supreme Court to put these issues over to another day. ...

Longer term, the opinion could be significant. First, it gets the courts and the FEC into the business of separating genuine issue ads from sham issue ads. The irony of course is that the bright line electioneering communications provision was sold as having the benefit of keeping the courts out of this mess. It is sometimes going to be impossible to determine whether an advertiser had an electioneering motive, as the facts of this case well demonstrate. It could be that the courts craft a tough test for plaintiffs to fit into this as applied exception. Or, if as I've suggested, the Supreme Court could well be moving toward more deregulation of campaign finance, this could be an important first step toward undermining McConnell without overruling it.
I'll update this post later when I've had the chance to read the case. Right now, I need to concentrate on developments circa 1819 -- McCulloch v. Maryland -- as it's nearly time to teach Conlaw.

Meanwhile, here's the short text of the case.

UPDATE: The AP's Gina Holland has this report:
Wisconsin Right to Life had challenged the part of the 2002 campaign finance law that bans the use of corporate or union money for ads that identify federal candidates two months before a general election. The group's ads named Sen. Russ Feingold, D-Wis., who was up for re-election, and the state's other senator.

The commercials urged people to call the senators and ask them to oppose Senate filibustering of President Bush's judicial selections. Feingold co-authored the campaign finance law with Sen. John McCain, R-Ariz.

The appeal had given the Supreme Court its first opportunity to review the McCain-Feingold campaign finance law in practical use. Justice Sandra Day O'Connor's retirement could leave the court split 4-4 on the law, because she was the deciding vote in the 2003 ruling.

O'Connor was on the bench Monday possibly for the last time. The court is taking a monthlong break.
Here's David Stout in the NYT:
The Supreme Court signaled a willingness today to revisit its landmark 2003 decision on the use of money in political campaigns, directing a lower court to reconsider a ruling against a Wisconsin anti-abortion group and perhaps opening the door to new challenges to campaign-finance restrictions....

On Dec. 11, 2003, the Supreme Court ruled, 5 to 4, that the core of the McCain-Feingold law was constitutional. Part of the law established a new category of "electioneering communications," or television ads that refer to specific candidates for federal office and that are broadcast in the relevant market within 30 days of a primary election or 60 days of a general election.

The law specifies that corporations and labor unions may not pay for such advertisements from their general treasuries, but must instead use money from their political action committees, which are subject to limits on campaign contributions.

Wisconsin Right to Life ran ads in 2004 urging viewers to contact the state's two senators, Mr. Feingold and Herb Kohl, also a Democrat, and urge them to oppose efforts to block President Bush's nominees for federal judgeships. Not coincidentally, Mr. Feingold was running for re-election (successfully, as it turned out).

A lower federal court ruled that the ads were "electioneering," and thus subject to disclosure requirements and spending limits spelled out in the McCain-Feingold law. But Wisconsin Right to Life argued that its ads were not really "electioneering" but instead amounted to "grass-roots lobbying," and under that definition should not be subject to the same curbs as "electioneering."

When the case was argued before the Supreme Court last week, there was considerable agreement that it can be very difficult to distinguish between ads meant to lobby and ads meant to influence an election - especially since many ads try to do both.
Here's the text of one of the ads in question:
PASTOR: And who gives this woman to be married to this man?

BRIDE'S FATHER (rambling): Well, as father of the bride. I certainly could. But instead, I'd like to share a few tips on how to properly install drywall. Now you put the drywall up . . .

VO: Sometimes it's just not fair to delay an important decision. But in Washington it's happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple"yes" or "no" vote. So qualified candidates don't get a chance to serve. Yes, it's politics at work, causing gridlock and backing up some of our courts to a state of emergency.

BRIDE'S FATHER (rambling): Then you get your joint compound and your joint tape and put the tape up over . . .

Contact Senators Feingold and Kohl and tell them to oppose the filibuster.
It makes complete sense to send the case back to the district court to do the as-applied analysis that it thought was unnecessary. The surprising thing is that the Court took so little time and devoted so few words to dispelling the district court's misimpression of McConnell. This is, after all, a case in which the Solicitor General filed a brief extolling the act's bright-line rules and the damage that would be done by as-applied challenges:
Recognition of an as-applied constitutional challenge along the lines suggested by appellant would substantially undermine Congress's effort to develop an objective bright-line rule for identifying the election-related advertisements that may not be financed with corporate and union treasury funds....

Appellant's approach would reintroduce the indeterminacy that Congress and this Court have sought to dispel.


Slocum said...

Everybody has his or her own, "Am I the only one who thinks the world gone stark raving mad?" issue, and this one's mine.

It still absolutely boggles my mind that a court could rule it constitutional to ban ads before elections that are directed toward the election of a candidate (what speech should be more protected than that? If any form of speech should be sacred under the constitution, THAT is it. How can porn be protected but urging voters to vote for a candidate before an election be restricted?!?) We don't need an exception for 'issue ads' (though I suppose that's better than nothing), we need this whole damn monstrosity to thrown out.

Mellow-Drama said...

slocum - Sing it, brother! Amen.

HaloJonesFan said...


(black text on a dark blue background? WHAT?!)

Mike said...

"The Supreme Court signaled a willingness today to revisit its landmark 2003 decision on the use of money in political campaigns."

Are all Supreme Court decisions called landmark now

Dr. Stat said...

I don't understand how a Right to Life group falls under "corporate and union" ????