FEC v. Wisconsin Right to Life, Inc. (2007) (WRTL II)
The Bipartisan Campaign Reform Act § 203 (BCRA) prohibited corporations from broadcasting advertisements aimed at the electorate, that named a federal candidate for office within thirty days of a primary and sixty days before a general election.1 The purpose was to prevent corporations from engaging in “express advocacy” for a candidate shortly before an election.2 In McConnell v. Federal Election Commission (2003), the U.S. Supreme Court heard a First Amendment challenge to BCRA § 203 and concluded the statute was not facially overbroad, and therefore, was constitutional.3
Then, prior to the 2004 general election, a tax-exempt, nonprofit corporation called Wisconsin Right to Life, Inc. (WRTL) intended to release three ads financed through its general treasury as part of a “grassroots lobbying campaign” that specifically named U.S. Senators and criticized efforts to filibuster President Bush’s federal judicial appointments.4 WRTL realized these ads would violate the BCRA, so it filed suit against the FEC seeking injunctive relief prior to the release of the ads. Applying the McConnell decision, the District Court denied the injunction and dismissed WRTL’s complaint.
Subsequently, in Wisconsin Right to Life, Inc. v. Federal Election Commission (2006) (WRTL I), the Supreme Court held that McConnell did not resolve future as-applied challenges, and thus, WRTL’s challenge could go forward.5 While BCRA § 203 was constitutional on its face, its enforcement was subject to case-specific review. The Supreme Court remanded WRTL I back to the lower District Court to consider the merits of WRTL’s as-applied challenge. Subsequently, the District Court found the ads were not express advocacy and ruled in favor of Wisconsin Right to Life. The FEC appealed to the Supreme Court. In WRTL II, the Supreme Court agreed with the District Court and held that the political speech at issue in these particular ads was not express campaign advocacy and BCRA § 203 was unconstitutional as applied to these ads.
There was no dispute the ads violated § 203 as the statute was written. The ads would have been released within sixty days of a general election, they named specific U.S. Senators, and they were targeted to the electorate (the ads would reach at least 50,000 viewers). There was also no dispute about the constitutionality of § 203 which, as already noted, was upheld in McConnell. The majority in McConnell cited election experts who testified that issue ads are highly effective and are typically released close to elections in order to influence the outcomes. The justices noted the tricky distinction between “issue” and “express” advocacy.6 While an ad urging citizens to “vote against Jane Doe” was “express” advocacy, an ad criticizing Jane Doe’s record was “issue” advocacy.7 As long as an ad did not use “magic words” advocating for or against a candidate it was protected from regulation under the FECA. The justices recognized that advertisers could easily “evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.”8
The McConnell decision rejected the argument that the First Amendment requires Congress to treat issue advocacy different than express advocacy when it comes to electioneering communications. The court concluded that Congress passed the BCRA with the intent of preventing big money corporations from circumventing the FECA by using special language in their ads. Under the BCRA, the wording of the ad was not as important as the intent or the effect. The BCRA was intended to prohibit “corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of general elections.”9 This was the precedent the lower District Court relied on when it initially rejected WRTL’s complaint.
Despite the reasoning in McConnell, Justice Roberts’ majority opinion in WRTL II conspicuously ignored Congress’ intent in passing the BCRA. His opinion hardly cited any statutory or case law precedent beyond the wording of the First Amendment. Table 6.1 illustrates that Justice Roberts relied heavily on Buckley v. Valeo (1976), which struck down restrictions on campaign expenditures.10
Table 6.1 Justice Roberts’ Majority Opinion, FEC v. Wisconsin Right to Life, Inc. (2007)
|
Content |
Number of lines |
Percentage of opinion |
|
FEC argues the WRTL ads are express advocacy under McConnell v. FEC (2003) test |
19 |
8.12 |
|
Facts of the case |
18 |
7.69 |
|
Buckley v. Valeo (1976) |
15 |
6.41 |
|
WRTL ads are not express advocacy (w/o citation) |
14 |
5.98 |
|
Corporate issue advocacy may not be regulated the same as express advocacy (w/o citation) |
12 |
5.13 |
|
Timing of the corporate ads is irrelevant(w/o citation) |
10 |
4.27 |
|
FEC’s restriction does not survive strict scrutiny (w/o citation) |
10 |
4.27 |
|
References to First Amendment protections |
10 |
4.27 |
|
Lower District Court’s ruling in favor of WRTL |
9 |
3.85 |
|
Rejection of FEC’s mootness argument(w/o citation) |
8 |
3.42 |
|
McConnell v. FEC (2003) is not applicable to future as-applied challenges (w/o citation) |
8 |
3.42 |
|
McConnell v. FEC (2003) test does not sufficiently protect First Amendment rights (w/o citation) |
7 |
2.99 |
|
Rejection of FEC’s mootness argument(with citation) |
7 |
2.99 |
Notes: N = 234. This table presents data for content that appeared at least seven times in the opinion.
Source: Table created by author based on data from FEC v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007).
The FEC and the dissent argued that McConnell established the test for dealing with these types of ads. The FEC was required to look at the intent and the effect of the ad. The relevant section that was included in the WRTL II majority opinion states:
This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods proceeding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.11
Justice Roberts’ opinion, however, rejected the idea that this test applied to future challenges. The majority concluded that McConnell settled the facial overbreadth argument regarding the BCRA § 203 statute, but did not establish a test for future cases. Astoundingly, without reference to statutory language, Congressional intent, or recent case precedent, the majority concluded the McConnell test was inapplicable to WRTL’s case, and moreover, inconsistent with the First Amendment. The majority ignored the fact that the FEC was acting at the direction of Congress, and carrying out its intent, by preventing corporations from circumventing restrictions on electioneering communications.
Rather than focus on Congressional intent or the recently decided McConnell precedent, the majority relied on Buckley—a decades-old case dealing with individual campaign expenditures. Justice Roberts devoted 6.4 percent of his opinion to Buckley, an opinion notorious for ushering in the era of massive campaign spending in elections. Prior to Buckley, Congress attempted to reign in campaign spending with the passage of the FECA, but Buckley essentially put an end to those efforts.
The majority cited Buckley as its basis for rejecting the application of the McConnell test to WRTL’s case. Justice Roberts wrote, “More importantly, this Court in Buckley had already rejected an intent-and-effect test for distinguishing between discussions of issues and candidates . . . For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election.”12 This statement is puzzling because, as the majority in McConnell pointed out, Congress passed the BCRA as a direct response to the rise in corporate-funded issue ads in the decades that followed the Buckley decision. The McConnell opinion detailed how, after Buckley, political parties were able to use corporate “soft money” to fund issue ads that did not specifically advocate for a candidate using “magic words” like “Elect John Smith” or “Vote Against Jane Doe.”13 Corporations funded their issue ads through soft-money donations to the political parties. The line between an express advocacy ad and an issue ad became almost indistinguishable. Moreover, issue ads did not have to meet the same FECA disclosure requirements, and therefore, corporations could sponsor issue ads under names intended to conceal their identity. The decision in Buckley, that limited the application of FECA’s expenditure limits to express advocacy, had hindered Congress’ ability to prevent the corrupting influence of corporations in the electoral process. The McConnell opinion stated:
Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckley’s magic-words requirement is functionally meaningless. Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted . . . Buckley’s express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system.14
Without much in the way of precedent, statutory language, or Congressional intent to fall back on, Justice Roberts invoked the cause of protecting political speech under the First Amendment. This was a common fallback position for the Conservative justices. When precedent was on their side, they cited precedent. When precedent was not on their side, they cited the Constitution. This was a familiar strategy for Conservative justices to hide what was inherently judicial activism behind a pretense of textualism. Either way, they claimed to be following the law.
Justice Souter’s dissent saw the line between issue ads and express advocacy as essentially meaningless. Issue ads were clearly designed to influence the outcome of elections, even if they didn’t invoke the magic words advocating for or against a candidate. What difference did it make if an ad expressly called for viewers to vote for John Doe, or simply criticized John Doe’s record? The intended effect on the viewer was the same.
Congress recognized that this was a difference without a distinction, which is why it passed § 203 of the BCRA restricting “corporations and unions from funding ‘electioneering communications’ out of their general treasuries.”15 Congress broadly defined the term “electioneering communication” to include ads that referred to a candidate for Federal office made within sixty days of a general election or thirty days of a primary, regardless of whether the ad told viewers to vote for or against a candidate. In McConnell, the court found that Congress had a compelling interest in regulating this type of electioneering by corporations and unions based on the enormous wealth that corporations accumulate. Moreover, this restriction was not a corporate ban on expression, since corporations could still finance genuine issue ads as long as they did not reference a candidate.
The dissent pointed out that Wisconsin Right to Life (WRTL) was funded mostly by contributions from other corporations. Its PAC, funded by individual donations, was very active over the years in making campaign expenditures. During the 2004 election, WRTL openly identified its top election priorities as reelecting President George W. Bush and defeating Senator Russ Feingold. “The Spring 2004 issue of the WRTL PAC’s quarterly magazine ran an article headlined ‘Radically Pro-Abortion Feingold Must Go!’”16 It criticized Senator Feingold for actively opposing President Bush’s judicial nominees.
This was the context within which WRTL ran the television and radio ads in question. The ads were paid for out of WRTL’s general treasury funds that consisted mostly of corporate contributions. The ads specifically targeted Senators Feingold and Kohl for using the filibuster to block federal judicial nominees, and urged voters to contact them. Furthermore, WRTL planned to air the ads close to the Senate elections. In fact, they started running the ads four days after the Senate recessed for the summer, and none of the ads ran after the election. Based on the timing and context of the ads, any voter hearing or seeing them would have understood that WRTL was urging them to vote against Senator Feingold.
These were the types of issue ads specifically addressed in McConnell only four years earlier. By ignoring the decision in McConnell, the majority basically created a new test for issue advertisements. Justice Souter wrote, “if an ad is susceptible to any ‘reasonable interpretation other than as an appeal to vote for or against a specific candidate,’ then it must be a ‘pure’ or ‘genuine’ issue ad. This stands McConnell on its head, and on this reasoning it is possible that even some ads with magic words could not be regulated.”17 The dissent called this an “inversion of McConnell.”18
The majority undid a century of restrictions on corporate and union electioneering, and replaced it with a haphazard, ad hoc approach. The only thing consistent about the court’s decisions in this area is the lack of consistency. Justice Souter concluded, “The price of McConnell’s demise as authority on § 203 seems to me to be a high one. The Court (and, I think the country) loses when important precedent is overruled without good reason, and there is no justification for departing from our usual rule of stare decisis here.”19
NOTES
1. Bipartisan Campaign Reform Act of 2002 § 203, 116 Stat. 81.
2. FEC v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 449, 456 (2007).
3. McConnell v. FEC, 540 U.S. 93 (2003).
4. WRTL II, 551 U.S. at 458.
5. Wisconsin Right to Life, Inc. v. FEC (WRTL I), 546 U.S. 410 (2006).
6. McConnell, 540 U.S. at 126.
7. Id. at 126–27.
8. Id. at 193.
9. Id. at 132.
10. Buckley v. Valeo, 424 U.S. 1 (1976).
11. WRTL II, 551 U.S. at 465–66.
12. Id. at 467.
13. McConnell, 540 U.S. at 126.
14. Id. at 193–94.
15. WRTL II, 551 U.S. at 519.
16. Id. at 523.
17. Id. at 526–27.
18. Id. at 527.
19. Id. at 534.