Analysis: “Blackout” on campaign ads in doubt
on Apr 25, 2007 at 11:50 am
With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia exhibiting considerable distaste for a key provision of federal campaign finance law, Congress’ latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the “blackout” period for “electioneering” ads on radio and TV — if it survived at all — would have far less effect in restraining such ads.
While both Roberts and Scalia seemed quite tempted to vote to overrule a decision of just three years ago upholding the “blackout” provisions on their face (Scalia commented that “Maybe we were wrong last time”), they might well find a way to narrow its scope so significantly that overruling would not be necessary as a practical matter. Roberts, for example, sought to explore ways to avoid an overruling of the 2003 decision in McConnell v. Federal Election Commission as it applied to the “blackout.” It would take five votes to undo that ruling and, given the likely lineup of the Court, a fifth vote could come only from Justice Sanuel A. Alito, Jr., who did not display any enthusiasm for that outcome on Wednesday.
Scalia was clearly taking the lead against the “blackout.” He commented to Solicitor General Paul D. Clement, who was defending that restriction: “This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line…And you’re not giving us one.” Roberts, confronting attorney Seth P. Waxman, representing lawmakers who helped create the “blackout,” soon echoed Scalia by asking rhetorically: “Do we usually place the burden when we’re applying strict scritiny under the First Amendment on the challenger to prove that they’re allowed to speak, as opposed to the government…to carry the burden that they can censor the speech?”
The main thrust of the Roberts-Scalia assault during the arguments on FEC v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970) was that the “electioneering communications” restrictions adopted by Congress in 2002 do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates. Just last Term, the Court had ruled, in a post-McConnell decision in this same Wisconsin Right to Life dispute, that “as-applied” challenges could still be made to the “blackout” clauses in the Bipartisan Campaign Reform Act of 2002.
WRTL’s lawyer, James Bopp, Jr., of Terre Haute, Ind., appeared to make real headway with his complaint that “as-applied” challenges would seldom succeed under the “blackout” provisions, justifying at a minimum a narrowing interpretation or, perhaps, an overruling of that part of McConnell. Roberts and Scalia helped him significantly, but he also held his own against sometimes sharply tinged questioning from Breyer and Souter.
While Solicitor General Clement readily acknowledged that the Court could reconsider the McConnell decision if it wished, he argued that this case was clearly not a proper occasion for doing so. The challenge by Wisconsin Right to Life to McConnell’s continuing vitality, Clement said, was merely an “afterthought” in the briefing, not a principal focus. But he had barely begun when Justice Scalia made it clear that this case potentially was more portentous than merely a follow-up to McConnell, contending that the three ads in question were “an appealing” example of “the right of citizens to band together for an issue ad.”
This “appealing case,” Scalia went on, was not before the Court in the McConnell litigation, so perhaps that indicated the Court had been wrong. The Solicitor General tried to parry Scalia’s thrusts, but he was unable to put Scalia at bay, and then was confronted by an equally persistent Chief Justice. Roberts seemed especially troubled about the difficulty of identifying the type of radio or TV ad in election season that could be broadcast without running afoul of the 2002 law’s restraints. The more Clement talked, the less it seemed he was satisfying the Chief Justice that the law did not shut off a wide array of campaign advertising.
Said Roberts: “It seems your approach today is inconsistent withour decision last year that you can have as-applied challenges. You’re suggesting that if we allow this as-applied challenge to go forward that we have to facially strike down the section.” The Solicitor General insisted that he was not making that argument, but then added that “not all as-applied challenges are created equal” — thus reinforcing the point that Roberts seemed to be making that perhaps many campaign ads could not be aired in the “blackout” period running close to elections.
Clement also had to try to fend off Justice Anthony M. Kennedy, who suggested that airing ads close to election was perhaps the best way to have a “political dialogue” because the public tunes out until that time. Kennedy also suggested that the height of the season might be the appropriate time to air an ad on a policy issue in the context of opposing a candidate who is likely to win, in hopes of influencing that lawmaker once elected.
Attorney Waxman, representing one of the namesakes for the “McCain-Feingold” law, as the 2002 campaign finance act is called, and other lawmakers who favor the “blackout,” drew some interesting questions from Justice Samuel A. Alito, Jr., who may hold the swing vote since it appears the other eight members may be divided equally. Alito seemed quite troubled by the notion that an ad could be outlawed in the “blackout” period if “any reasonable person” could determine it was intended to influence voters’ choice, as opposed to discussing a policy issue. Alito appeared to have drawn that standard from Waxman’s brief for Sen. McCain and others.
Alito also seemed impressed by the accumulation of amicus briefs, by advocacy groups arguing that it is “really impractical” to try to sort out the kinds of ads that could be aired during the blacked-out campaign season.
Waxman seemed to offend the Chief Justice by arguing that a number of those advocacy groups complain about the “blackout” provisions, but do not actually try to bring a challenge to it. The National Rifle Association, he said, did bring such a challenge once, and won, “but they can’t take yes for an answer. They want to establish that this law is facially unconstitutional.” That point led him into an argument against overruled the part of McConnell upholding the “blackout” clauses.
Attorney Bopp’s time at the podium had barely begun when Justice Breyer started testing whether the Court could rule for Wisconsin Right to Life without not only overruling the McConnell decision, but also undermining the decades old understanding that Congress can bar corporations from spending money to support federal candidates. Why, Breyer asked, should he Court reverse itself after only a few years?
Bopp stood his ground, arguing that even the McConnell ruling could not save the “blackout” provisions from being struck down, if there were no “workable test” that small grass-roots organizations could use to determine whether they could speak out during campaigns.
Justice Souter picked up on a point that Breyer also had begun to make, about the need to examine the context in which a political ad was prepared and aired in order to know whether it was a genuine issue advocacy ad, or one seeking to tell — at least by implication — how voters should choose among candidates. Souter said it was important to know “the political context in which the ad is run…. Doesn’t any communication depend upon the understanding of the listener?”” But, throughout that lengthy and testy exchange with Souter, Bopp remained devoted to his notion that the First Amendment only focuses on words, not context. “What do the words say? What does the ad say? What does the speech say?” What is at stake, Bopp contended, was that grass-roots groups “be allowed to speak” to give information to voters.
Bopp, however, did not appear to have the full support of Kennedy for confining the inquiry into political advertising’s nature by focusing only on the words. Kennedy noted that the use of “fighting words” can mean one thing “in a bikers’ bar” and something different elsewhere, and noted that the ban on shouting “Fire!” in a theater applies only if the theater is crowded.
Under brief questioning from Justice John Paul Stevens, WRTL’s attorney argued that grass-roots groups want the right to speak out during campaigns in hopes of influencing even candidates that they can assume are not in harmony with those groups’ aims. “At least people should have the opportunity to engage in grassroots lobbying,” Bopp said, immediately drawing this approving comment from Justice Kennedy: “Is that called democracy?”
Chief Justice Roberts obtained some assurance from Bopp that WRTL’s challenge could succeed even if the Court does not overturn “McConnell‘s position,” as Roberts put it.” Bopp also insisted to Justice Souter that grass-roots groups are more interested in a meaningful chance to make an as-applied challenge than they are in getting out from under the McConnell decision upholding the “blackout” as written.
The Court will cast its preliminary vote on the WRTL case at its private Conference on Friday, and move on from there to decide it by early summer.
