Federal Election Comm'n v. Wisconsin Right to Life

Supreme Court of United States
127 S. Ct. 2652 (2007)

ELI5:

Rule of Law:

A broadcast advertisement is the functional equivalent of express campaign advocacy, and therefore may be regulated, only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. A restriction on corporate political speech about a legislative issue is unconstitutional as-applied if the speech does not meet this stringent standard.

Facts:

Wisconsin Right to Life, Inc. (WRTL) is a nonprofit, ideological advocacy corporation.
In the summer of 2004, U.S. Senator Russ Feingold of Wisconsin was running for re-election.
WRTL produced three advertisements—two on radio ("Wedding," "Loan") and one on television ("Waiting")—that criticized a "group of Senators" for using the filibuster tactic to block federal judicial nominees.
The ads asked listeners and viewers to contact Senators Feingold and Kohl and tell them to oppose the filibuster.
The ads did not mention Senator Feingold's candidacy, the election, or his political party.
WRTL planned to broadcast these ads using its general treasury funds within the 30-day period before the 2004 Wisconsin primary election, a period during which such ads were classified as illegal "electioneering communications" under the Bipartisan Campaign Reform Act (BCRA).

Procedural Posture:

Wisconsin Right to Life, Inc. (WRTL) filed suit against the Federal Election Commission (FEC) in the U.S. District Court for the District of Columbia, a special three-judge court.
WRTL sought a declaratory judgment and an injunction to prevent the enforcement of BCRA §203 against its planned advertisements.
The District Court denied WRTL's motion for a preliminary injunction and dismissed the complaint, ruling that the Supreme Court's decision in McConnell foreclosed any as-applied challenge.
WRTL appealed to the U.S. Supreme Court, which, in a per curiam opinion (WRTL I), vacated the District Court's judgment.
The Supreme Court in WRTL I held that McConnell did not foreclose as-applied challenges to §203 and remanded the case for the District Court to consider the merits.
On remand, the District Court granted summary judgment for WRTL, holding that BCRA §203 was unconstitutional as applied to WRTL's three ads.
The FEC, as appellant, along with congressional intervenors, appealed the District Court's decision directly to the U.S. Supreme Court.

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Issue:

Does Section 203 of the Bipartisan Campaign Reform Act, which criminalizes corporate-funded "electioneering communications" broadcast shortly before an election, violate the First Amendment as applied to ads that focus on a legislative issue and urge citizens to contact their senators, but do not expressly advocate for the election or defeat of a candidate?

Opinions:

Majority - Chief Justice Roberts

Yes. Section 203 of BCRA is unconstitutional as applied to WRTL's ads because the ads are not the functional equivalent of express advocacy. To distinguish between genuine issue ads and their functional equivalent for as-applied challenges, a court must find that the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. An objective standard focusing on the substance of the communication is required, and amorphous considerations of speaker intent or listener effect, previously rejected in Buckley v. Valeo, must be avoided to prevent chilling protected political speech. WRTL's ads focus on a legislative issue, take a position on that issue, and urge the public to contact public officials—all hallmarks of a genuine issue ad. They do not mention an election, candidacy, political party, or a candidate's fitness for office. Because the ads can be reasonably interpreted as something other than an appeal to vote against Senator Feingold, they are not the functional equivalent of express advocacy, and the government's asserted interest in preventing corruption is not compelling enough to justify this restriction on core political speech.

Concurring - Justice Scalia

Yes. While agreeing that BCRA is unconstitutional as applied to WRTL, the test articulated by the principal opinion is itself impermissibly vague and will not prevent the chilling of political speech. The difficulty of drawing a clear line between issue advocacy and electioneering proves that the Court's prior decision in McConnell v. Federal Election Comm’n, which upheld §203 on its face, was wrongly decided. The only clear and constitutionally sound line is the 'express advocacy' standard established in Buckley v. Valeo, which confines regulation to communications using words like 'vote for' or 'vote against.' Because §203 of BCRA goes beyond this bright-line rule and creates an unworkable standard, the portion of McConnell upholding it should be overruled.

Dissenting - Justice Souter

No. Section 203 of BCRA is not unconstitutional as applied to WRTL's ads, which are a paradigmatic example of the sham issue ads that Congress intended to regulate and that this Court found regulable in McConnell. The majority's new test—that an ad is regulable only if it is 'susceptible of no reasonable interpretation other than as an appeal to vote'—effectively overrules McConnell and reinstates the ineffective 'magic words' standard that BCRA was designed to close. The context of WRTL's ads—run by an organization that openly opposed Senator Feingold's re-election, timed to coincide with the election, and focused on a key campaign issue—makes it clear to any reasonable viewer that their purpose was to defeat Senator Feingold. Ignoring this context and allowing such ads to be funded by corporate treasuries reopens the door to the corrosive influence of concentrated wealth in elections that a century of legislation has sought to prevent.

Analysis:

This decision significantly narrowed the scope and practical effect of the Bipartisan Campaign Reform Act of 2002. By creating a stringent new test for what constitutes the 'functional equivalent of express advocacy,' the Court made it much more difficult for the government to regulate corporate and union-funded issue ads aired near elections. The ruling effectively creates a safe harbor for any ad that can be plausibly interpreted as being about a public issue, even if it names a candidate and is clearly intended to influence an election. This decision marks a major shift away from the Court's more deferential approach in McConnell and presaged the eventual striking down of the underlying corporate expenditure ban in Citizens United v. FEC.

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