Get Ready For Election Eve Issue Ads

Today, U.S. Supreme Court dramatically retreated from its 2003 holding that a federal ban on electioneering with corporate and union money through issue ads in the two months before a federal general elections and the month before federal primary elections was constitutional on its face.  The new ruling in FEC v. Wisconsin Right to Life could have a real impact in 2008.  You can expect to see and hear more ads critical of candidates stances on issues, that don’t expressly advocate or oppose those candidates for public office.The Decision

The Bipartisan Campaign Reform Act of 2002 bans “electioneering communications” in the 30 days before a federal primary, and the 60 days before a federal general election, with corporate money (profit or non-profit) other than money regulated through the Political Action Committee system.  In 2003, U.S. Supreme Court case, had upheld the constitutionality of that law in the abstract in the case McConnell v. FEC

As a result, in 2004, Wisconsin Right To Life lost the battle, when a trial court order kept its ads complaining about Senators who filibustered judges off that air in that election.  But, today, it won the war, with a ruling finding the electioneering communications ban unconstitutional in cases like those involving its proposed ads.

Under today’s decision electioneering blackout of the Bipartisan Campaign Reform Act of 2002 will apply only to ads that are “susceptible to no reasonable intepretation other than as an appeal to vote for or against a specific candidate.”  In essence, the 5-4 majority invalidating the law as applied held that it was simply too hard to make a clear distinction between legal and illegal ads in a constitutional manner by determing the intent of the speaker as the Court’s 2003 ruling had suggested lower courts should.

The Votes and Amici

Justices Scalia, Kennedy and Thomas would have revisited the Court’s 2003 decision upholding the electioneering blackout law entirely, and declared even an election eve ban on candidate ads unconstitutional.

Chief Justice Roberts, who drafted the majority opinion, however, was content to simply construe the electioneering blackout in a way that minimizes its importance, without fully overruling the high court’s 2003 precedent.  Justice Alito joined Chief Justice Roberts in this case, but held open the possibility of doing so in the future if the narrowed version of the electioneering blackout law still chills issue ads. 

The four liberals on the U.S. Supreme Court (relatively speaking), who are Souter, Ginsberg, Breyer, and Stevens dissented, arguing that the Court’s 2003 decision’s recent binding precedent had been gutted, and that the downside of political campaigns driven by ill regulated corporate and union financing outweighed the free speech issues involved in this case.

The ACLU, AFL-CIO, NRA, Focus on the Family, Chamber of Commerce, and Cato Institute all backed Wisconsin Right To Life in this suit in amicus briefs.

New Faces, New Law

The high court’s about face on the constitutionality of the Bipartisan Campaign Reform Act of 2002 is one of the clearest cases to date in which Justice O’Connor’s January 2006 retirement from the Supreme Court has changed the law.  She provided the key fifth swing vote to uphold the campaign reform law.  Her replacement Justice Alito, did not, and that made all the difference.

Justices Kennedy, Thomas and Scalia dissented in the McConnell decision in 2003, and predictably were still in favor of finding the campaign finance law unconstitutional now.

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Andrew Oh-Willeke

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