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The Supreme Court will hear oral argument on April 25 in a new campaign-finance case, Wisconsin Right to Life v. FEC, with a decision expected by June. Those who think it is a good idea to keep big money out of politics should be afraid of this case. Very afraid. As first blush, it is easy to mistake this as a low-stakes affair involving an overzealous Federal Election Commission clamping down on the political speech of a small ideological group, the anti-abortion organization Wisconsin Right to Life. But appearances are deceiving: What’s really at stake is whether General Motors and the AFL-CIO will get to spend millions from their treasuries on TV and radio ads likely to influence the outcome of federal elections, and ultimately whether they and wealthy individuals funding these ads who want to shield their identities from public scrutiny will get a constitutional right to do so. VAGUE AND BROAD? Here’s the relevant background. In the years before Congress passed the Bipartisan Campaign Reform Act of 2002 (more commonly known as McCain-Feingold for its two Senate sponsors), corporations and unions were prohibited from spending their general treasury funds on ads that advocated the election or defeat of candidates for federal office. The prohibition on corporate spending dates back to 1907; the union limits go back to the 1940s. The corporations or unions could set up separate committees (known as political action committees, or PACs) and solicit contributions to run such ads. But the prohibition on spending corporate or union treasury funds on election-related ads was easily circumvented, thanks to the Supreme Court’s interpretation of the relevant law in Buckley v. Valeo (1976). The Court said that the words in the federal statute regulating spending “relative to” a clearly identified federal candidate were vague, and this vagueness created a constitutional problem: People have to know what they can and cannot do under the law. To solve the vagueness problem, the Court read the statute as applying only to ads that contained express words of advocacy (so-called “magic words”) such as “Vote for Smith” or “Vote Against Jones.” Thus emerged the rise of sham issue advocacy, ads that were campaign ads in all but name. The ads criticized a candidate running for office, but ended with something like “Call Smith and tell him what you think of his lousy plan to fix Medicare.” The Democrats’ campaign against Bob Dole’s 1996 presidential run was one of the first prominent examples of this kind of advertising, and these ads proliferated in the 1990s. McCain-Feingold was meant to close this loophole (along with doing other things, such as limiting “soft money”). It did so by adopting a bright-line electioneering communications test. Any ad broadcast on TV or radio within 30 days of a primary or 60 days of the general election, featuring a candidate for federal office and broadcast to at least 50,000 people where the candidate was running for office, would count as an electioneering communication. If so, corporate or union treasury funds could not pay for the ad. Funders of such ads also must disclose their identity in reports filed with the FEC. The new disclosure provisions were prompted by “stealth ads,” such as the ones run in the 2000 Republican presidential primary in New York. John McCain and George W. Bush were competing for the nomination, and a previously unheard-of group, Republicans for Clean Air, ran ads attacking McCain’s environmental record. Investigative journalists found out that the ads were being paid for by Sam and Charles Wyly, two Texas oilmen close to the Bush family. Thanks to McCain-Feingold, the funders of such ads are now a matter of public record. A number of groups challenged the major parts of McCain-Feingold in McConnell v. FEC (2003). Challengers argued that the electioneering communications test was unconstitutionally “overbroad” because the test would capture some ads that were not intended to affect or likely to affect the outcome of a federal election. Think of an ad urging a senator who is running unopposed for office to vote a certain way on a bill pending in Congress. There is no question that the law is somewhat overbroad: The bright-line test captured some genuine issue advocacy, such as the hpothetical ad run to get the attention of the unopposed senator. But constitutional doctrine says that a law becomes unconstitutional only if it is substantially overbroad. A few isolated cases don’t justify striking down the entire law. Scholars tried to answer the difficult empirical question of how much genuine issue advocacy would be covered by the electioneering communications test, and the parties hotly debated the question in the McConnell case. However, despite the conflict over the evidence, the Supreme Court flatly rejected an overbreadth argument. The vote was 5-4, with then-Justice Sandra Day O’Connor casting the decisive fifth vote. The four dissenting justices rejected not only the new electioneering communications test, but also the underlying ban on corporate and union election spending. To the dissenters, the First Amendment gives a company like Verizon the right to spend millions from its treasury supporting or opposing whatever federal candidates it chooses. AS APPLIED The Wisconsin Right to Life case is follow-on litigation about the overbreadth issue. In McConnell, the challengers had argued that the electioneering communications provisions were facially invalid — that is, invalid in all its applications because of its substantial overbreadth. The question presented by Wisconsin Right to Life is an as-applied challenge: May a corporation or union that wants to run an ad that it claims really is genuine issue advocacy (or, as Wisconsin Right to Life spinningly puts it “grass-roots lobbying”) get an exemption on the grounds that the law is unconstitutional as applied to the particular facts of its case? Wisconsin Right to Life wanted to run an ad urging Democratic Sens. Herb Kohl and Russell Feingold (both of Wisconsin) to oppose filibusters of judges in the Senate. This was run at a time that Feingold, but not Kohl, was running for re-election, and Wisconsin Right to Life did not like Feingold’s position on filibustering President George W. Bush’s judicial nominees. The first question you might ask is why Wisconsin Right to Life couldn’t spend its treasury funds on these ads. After all, this is an ideological group, not a big union or corporation. And back in 1986, the Supreme Court held that certain incorporated ideological groups can spend their treasury funds on election-related ads. Wisconsin Right to Life couldn’t meet that ideological corporation exemption because it took money from business corporations. A lot of it: more than $300,000 in 2004, including individual business corporate donations of $50,000 and $140,000. So what the Supreme Court rules about this group is going to apply the same to AT&T and the Service Employees International Union. Wisconsin Right to Life requested an injunction barring the FEC from enforcing the electioneering communications provisions against it. Under special provisions in the McCain-Feingold law, the case went to a special three-judge panel of the U.S. District Court for the District of Columbia. At first, the court said that McConnell barred such as-applied challenges, and the case was appealed directly to the Supreme Court. There, Justice O’Connor was retiring, and the Court unanimously sent the case back to the three-judge court, essentially buying time as the Roberts Court was getting into place. The second time around, the same three-judge panel, perhaps feeling less constrained by the new Roberts Court, held 2-1 on Dec. 21 that Wisconsin Right to Life could get an as-applied exemption from the law, meaning it could spend treasury funds on these ads. The majority said that in applying the as-applied exemption, courts are going to look only at the face of the advertisement itself, and not any context, to determine whether an as-applied challenge is accepted. For example, if the ad lacks express words of support or opposition to the candidate and makes no explicit reference to the election, these factors point in favor of an exemption. The majority also said that the FEC should not look behind the ads to the subjective intent of those putting up the ad, and the court thought it unmanageable in an election campaign to have expert opinion on whether such an ad is likely to influence voters about how they will vote. The majority’s approach has significant problems. In this case, the filibuster issue was tied in with abortion politics and could well have been seen as an attack on Feingold to anyone paying attention to politics in Wisconsin at the time. It certainly could have influenced the outcome of the Senate election in that state. As the dissent pointed out, this “see-no-evil” approach is inconsistent with the Supreme Court’s McConnell decision, which said that it was appropriate to look behind sham issue ads and recognize the “functional equivalent” of ads that say “Vote for Smith.” The lower court test is decontextual: It closes its eyes to the political reality and salience of ads such as Wisconsin Right to Life’s, and it will allow many opportunities for circumventing the corporate and union election spending limits. And if this case succeeds, the next argument will be that disclosure of the funders behind these ads is unconstitutional as well. NARROWER TESTS The Roberts Court could well agree with the lower court that Wisconsin Right to Life can have its as-applied exemption. O’Connor has been replaced by Justice Samuel Alito Jr. Last term, the Roberts Court struck down Vermont’s campaign contribution limit law, and Justice Alito in a separate concurrence tantalizingly suggested he’d be open to joining Justices Antonin Scalia and Clarence Thomas in holding that the First Amendment requires deregulation of campaign finance. This case may turn out to be yet another step toward deregulation. The damage this case causes depends on how the Court crafts the as-applied criteria. A wide exemption such as that created by the lower court would eviscerate the longstanding limit on corporate and union election-related spending. But there are narrower, more minimal as-applied tests that could do less damage to our system, a system that currently does a pretty good job balancing First Amendment rights and the need to prevent corruption, preserve voter confidence in the electoral process, and (though the Court won’t say it) promote some political equality. For example, Richard Briffault of Columbia Law School has suggested that the Court could craft an as-applied exemption narrowly, applying it only to ads where there can be no conceivable effect on an election, such as TV ads mentioning an unopposed federal candidate during the electioneering communications window. Or the Court could require the FEC to use a “contextualized” approach: An ad run in the window is covered under the restrictions unless the corporation or union can convince the FEC that it is unlikely to have an effect on the outcome of the election. Of course, anyone who doesn’t take corporate or union money can spend whatever they want on such ads so long as they disclose the source of the ads’ funding. It is true that this context test brings back some of the vagueness problems that the Supreme Court first flagged in Buckley. But remember that if a corporation or union is worried about how the FEC would view its ads, it has choices. It could run the ads using its PAC funds; run the ads outside the window; run the ads in print, on the Internet, or through direct mail or billboards instead of on television or radio; or run the ads without using the candidate’s name. The burden on corporate free speech is not all that much. But the cost to society of a “see-no-evil” decontextualized approach is great: It would increase corporate dominance over election campaigns and make it easier for stealth donors to hide their true identities. And that is something we all should fear.
Richard L. Hasen is a professor at Loyola Law School in Los Angeles. He runs the Election Law Blog.

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