Analysis: Freeing campaign broadcast ads
on Mar 22, 2007 at 11:56 am
With a rhapsodic essay about John Milton and James Madison, and a bracing reminder of the evils of the Star Chamber and the Alien and Sedition Acts, a Wisconsin advocacy group on Thursday urged the Supreme Court to take away the government’s power to ban campaign season radio and TV ads by corporations and labor unions using their own money. The new brief can be found here.
With added writing space granted by Chief Justice John G. Roberts, Jr., the group — Wisconsin Right to Life — asked the Court to reconsider one facet of the 2003 decision in McConnell v. Federal Election Commission — the part that upheld, as written (but not necessarily as applied), the provision that bans so-called “electioneering communications.” That ban operates in two campaign “blackout” periods — 30 days berfore a federal primary election and 60 days before a general election. It applies to corporations or labor unions that pay for the broadcast ads out of their own treasuries if the ads name a candidate.
The new brief was filed in the consolidated cases of FEC v. Wisconsin Right to Life (06-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The Court will hold one hour of argument on those cases on April 25.
While the McConnell opinion was a bit opaque on whether it dealt only with a facial challenge to the broadcast ban, the Court made clear in January last year that it had not intended to rule out as-applied challenges to that provision. That led to a 2-1 U.S. District Court decision finding the ban invalid as it applied to three specific ads that the Wisconsin group had planned to air in the summer of 2004. The Justices this January agreed to hear the case, but left open whether the case might be dismissed as moot. At the time the case was put on the decision docket, it was not clear that it would raise any issue about the McConnell decision’s continuing validity.
WRTL, in asking for added briefing space, had informed the Court that it intended to call for overruling of the 2003 decision so far as it upheld the broadcast ban — an overturning that would free corporations and labor unions to spend directly on campaign season ads. WRTL contends that its adversaries in the cases have provoked the constitutional re-examination by arguing that the three ads not broadcast are exactly the kind of campaign expression that the federal campaign finance law intended to ban.
Since it contends that those ads are not campaign ads at all, but ads that genuinely deal with a legislative issue that was live in the summer of 2004 (Senate filibustering of federal judicial nominees), applying the ban to them would clearly violate the First Amendment’s protection of free speech and the right to petition the government, WRTL’s brief asserts.
The brief suggests that, if the Court agrees that part of the McConnell decision should be overruled, that possibility could be averted if the Court were to “create a safe-harbor for grassroots lobbying.” As spelled out in the brief, such a safe harbor would exempt campaign season ads from the federal ban if such an ad “focuses on a current legislative branch matter, takes a position on the matter, and urges the public to ask a legislator to take a particular position or action with respect to the matter in his or her official capacity,” and the ad “does not mention any election, candidacy, political party, or challenger, or the official’s character, qualifications, or fitness for office.”
Crafted that way, the “safe harbor” would eliminate any real likelihood that the ad would have an actual effect on the election outcome, and thus would not be seen as a campaign statement, according to WRTL. The “safe harbor” would still allow “a forceful discussion of the merits of the matter,” including discussion of the candidate’s position on the matter and the suggestion that he or she “is wrong or right on the issue,” without suggesting that the candidate is “wrong for office.”
The brief, however, does argue that “the better course” would be simply to overrule McConnell on the point and strike down the “electioneering communication” provision altogether. Allowing for as-applied challenges, it contends, is not a sufficient protection for “genuine issue ads.” WRTL says that the Court thus was wrong in 2003 in assuming that the ad ban would not sweep into the realm of illegality a host of “genuine issue ads.”
As-applied challenges in court are not a workable mode of protection, the brief says. It lays out the following reasoning behind that conclusion: “Any citizen group having the temerity to want to run future ads must (1) plan well in advance to allow ample litigation time (problematic because the need for grassroots lobbying frequently arises on short notice), (2) retain a lawyer, (3) endure the invasion of its privacy by a discovery investigation at the hands of the FEC and intervenors (which often will include their political opponents), and (4) pay the legal expenses and costs to endure the scorched-earth litigation practices of the federally-funded FEC and the statutorily-permitted intervenors in order to get prior permission from a court to run a constitutionally-protected communication at the core of our system of self-governance by the people. After all that, they may still run into the dead-end of having their case mooted…”
The FEC and the intervenors in these cases will have a chance to reply to WRTL’s constitutional thrust in their reply briefs.
