Yesterday, we brought you the BHFJ case ("Bong Hits 4 Jesus"); today it’s BCRA ("Bipartisan Campaign Reform Act" or "McCain-Feingold"). The Supreme Court’s "other" First Amendment case from June 25, 2007 was probably the more important of the two, as far as broadcasters are concerned. But let’s face it: it’s just not as fun, is it? Especially when the collective opinions in Federal Election Commission v. Wisconsin Right to Life, Inc. weigh in at 93 pages…
The Bipartisan Campaign Reform Act was passed in 2002 as a means of limiting the money spent on election campaigns. Among the restrictions affecting broadcasters was Section 203, which criminalized the use of general treasury funds by any corporation to pay for an "electioneering communication," meaning any broadcast referring to a candidate for federal office that is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where the election is being held. A group could still fund such ads through a separate Political Action Committee.
This provision was previously upheld by the Supreme Court against a facial First Amendment challenge in McConnell v. Federal Election Commission. But the issue arose again after the Wisconsin Right to Life organization began broadcasting advertisements which mentioned by name certain Senators, including Wisconsin Senators Russell Feingold and Herb Kohl, and urged voters to contact those Senators to oppose a filibuster on the nomination votes of federal judges. These advertisements are posted on the organization’s webpage. They ran through June and July 2004 but, come August 2004, would have been prohibited as electioneering communications. Wisconsin Right to Life filed suit against the Federal Election Commission ("FEC") for the right to continue airing the advertisements.
Wisconsin Right to Life’s desired declaratory and injunctive relief were denied by the United States District Court, which held that the previous ruling in the McConnell case left no room for this "as applied" challenge that was specific to the three advertisements that Wisconsin Right to Life sought to broadcast. The Supreme Court initially vacated the District Court’s judgment in a decision issued in early 2006 because the Court believed its McConnell holding was never intended to prevent future challenges to BCRA. On remand, the District Court ruled in favor of Wisconsin Right to Life. Due to special provisions built into the law regarding direct appeal to the Supreme Court, the case found itself back in Washington for argument on April 25, 2007.
As with the Bong Hits 4 Jesus case, Chief Justice Roberts wrote the majority opinion of this 5-4 decision that once again contained multiple concurring opinions. He first tackled the question of whether Sectio n203 of BCRA – which Wisconsin Right to Life conceded would be applicable to these advertisements. Roberts immediately identified that the "strict scrutiny" test would be applied to this content-based regulation. Thus, the burden would be on the government to prove that Section 203 furthers a compelling government interest and is narrowly tailored to achieve that interest (basic Con Law II here, folks). However, the FEC had already demonstrated the existence of a compelling interest for Section 203 in the McConnell decision (the prevention of corruption, or the appearance of corruption, in political campaigns and the aggregation of wealth in corporations that do not mirror the desires of the voting public), so the Court moved directly to the second issue: whether the law is narrowly tailored to that interest so as to prohibit these particular advertisements.
As it did in "Bong Hits 4 Jesus", aka Morse v. Frederick, the Court rejected an extensive inquiry into the intent of the speaker, instead letting the ads speak for themselves. Chief Justice Roberts’ said that, because the advertisements could be construed as something other than an express urging to vote for or against a candidate, they were not express advocacy advertising – in other words, the vagueness of the speech here would be resolved in favor of the corporate speaker, whereas vagueness in the school context allowed for deference to the school administrators at the expense of the student speakers. And he even cited similar reasons for this opposite result: the need for quick determination of the meaning of the speech and resolution of the conflicts involved. With that in mind, these advertisements were not express advocacy ads because they were open to reasonable interpretation. They took a focus on legislative issues and only requested that the public contact a candidate with regard to that issue, not that the public vote for or against the candidate. Issue advertisements such as these do not carry the same concerns regarding corruption in the political process that exist with regard to express advocacy advertisements. Nor does the fact that corporations have significant wealth justify preventing their speaking out on issues rather than endorsing candidates – issues are the lifeblood of an advocacy organization such as the Wisconsin Right to Life and they must be able to state their public position on public issues.
Justice Alito wrote an opinion concurring with the majority. However, he made it clear that if Section 203 continues to be ruled unconstitutional as applied to similar advertisements, he might consider revisiting the inquiry as to whether it is unconstitutional on its face.
Justice Scalia, joined by Justices Kennedy and Thomas, went further than Justice Alito and simply said that Section 203, as he believed in McConnell should be declared unconstitutional on its face, because it is impossible to distinguish in many cases between an advertisement that advocates an issue by urging voters to contact a candidate and one that advocates election or defeat of a candidate – in other words, the vagueness inherent in this case will exist in every case of this type. He provided, as he often does, a most illuminating method of getting his point across, comparing this case to a Moroccan criminal prosecution under that country’s "insult" law:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lse majesté being a serious crime in Morocco) as follows: " ‘I’m not a revolutionary, I’m just defending freedom of speech… . I never said we had to change the king–no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’ "1 Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running
Finally, Justice Souter dissented, joined by Justices Stevens, Ginsburg and Breyer. Justice Souter went to the trouble of reading his dissent from the bench, so angry was he with the apparent reversal of the McConnell decision for all practical purposes. These Justices believe that the majority has reopened the door to corporate spending to defeat candidates under the guise of promoting an issue.
What does all this mean for broadcasters? Only good things, we’re sure. Broadcasters were never subject to criminal punishment under Section 203, so there was limited downside to an adverse Court ruling. But the Court’s ruling opens the door to direct spending by corporations and not-for-profit advocacy groups during the periods before an election without fear of running afoul of Section 203. If, as many believe, the Court showed its sympathy for Corporate America today, then the biggest subset of corporations that won were the broadcast media.