Election season begins: Argument 4/25/07
on Apr 24, 2007 at 5:41 pm
Analysis
The 2008 election campaign does not open, formally, for several more months, but it gets a start in the Supreme Court Wednesday — the final day of scheduled arguments in the current Term. The Court holds one hour of oral argument in two consolidated cases that may influence in a major way the role of advocacy groups in speaking to voters about the issues shaping the 2008 election. Just 40 months after the Supreme Court upheld broad power for Congress to regulate broadcast ads during election season, the Court is being asked to overturn a key portion of that ruling. If it does, or if it restricts that ruling in a significant way, there could be an even heavier flow of corporate and labor union cash — including major funding by non-profit corporate advocacy groups — into radio and TV ads throughout the coming campaign.
The cases are Federal Election Commission v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970). The cases are a sequel to the Court’s massive ruling in December 2003 in McConnell v. FEC, upholding most major provisions of the Bipartisan Campaign Reform Act of 2002. Specifically at issue in the new cases is the part of McConnell that upheld Congress’ restriction on what are called “electioneering communications.”
As it turned out later, however, the Court would stress that McConnell had merely upheld the language of that restriction in BCRA, and had not ruled out constitutional challenges to the ban when applied to specific ads. The new dispute before the Court started out as just such an “as-applied” challenge but has grown into a plea to overturn that part of the McConnell decision.
“Electioneering communications,” under the 2002 law, are ads that corporations and labor unions (including many non-profit corporations) pay for out of their own treasury funds, when the ads run in an area where a federal candidate is on the ballot (everywhere, for presidential candidates), use that candidate’s name, and appear within 30 days before a primary election and 60 days before a general election — the “blackout” period. As of now, that period, at least for the presidential campaign, is to start next December, 30 days in advance of the Iowa caucuses.
The legal question before the Court in the two new cases is whether a special three-judge U.S. District Court in Washington, D.C., was wrong in ruling last December that the “blackout” provision was unconstitutional as applied to three ads that Wisconsin Right to Life had planned to air during the 2004 election season.
But, as is frequently the case with Supreme Court litigation, the Justices will first have to confront the question of whether there is a “live” case before them for decision. The FEC, in appealing one of the cases, suggested that the dispute may be moot, because the case only involves three specific ads from 2004 and there is no proof that WRTL is likely to run the same kind of ads in the future. The Court, in its Jan. 17 order agreeing to hear the two cases, postponed a ruling on whether the case is moot and thus whether it has jurisdiction to decide them. That will no doubt be considered in Wednesday’s oral argument, and in the coming decision, along with the merits.
Arguing for the FEC will be U.S. Solicitor General Paul D. Clement. Representing the four members of Congress — two Democrats and two Republicans who support the “blackout” restrictions — will be Seth P. Waxman, a Washington lawyer and former Solicitor General. Wisconsin Right to Life’s lawyer will be James Bopp, Jr., of Bopp, Coleson & Bostrom in Terre Haute, Ind.
Wisconsin Right to Life is an advocacy group that speaks out in opposition to abortion rights and in favor of other conservative causes. Under federal campaign finance law, it does not qualify for an exception that would allow it to finance election-season ads naming candidates with corporate funds, but it wants to use corporate funds to finance just such ads.
It has consistently opposed the election and reelection of its state’s Democratic Sen. Russell Feingold. In 2004, when he was running for reelection, however, it decided to spend some of its money on ads that would emphasize its complaint about Senate filibusters of judicial nominees. It prepared three ads that named Feingold, but also named the state’s other Democratic Sen. Herb Kohl (not up for reelection), in the context of a plea to Wisconsin residents to contact their senators about the filibustering. Fearing that it would be attacked by the FEC for those ads, under the “blackout” restrictions, WRTL sued, claiming First Amendment protection for those broadcasts.
Initially, it lost in U.S. District Court, in a ruling interpreting the McConnell decision as forbidding “as-applied” challenges to the “blackout.” But after the Supreme Court disagreed, and allowed WRTL’s challenge to go forward, the District Court in a 2-1 decision upheld WRTL’s right to broadcast those ads. The District Court said the case was not moot. It ruled that the legality of such ads was to be based solely on the words and images in the ads themselves, not on the timing or other context in which they were prepared or appeared. Since the ads did not directly urge voters to oppose Feingold, it made no difference to the ads’ legality that WRTL favored that outcome in its other forms of advocacy, the District Court concluded.
Much of the argument in the briefs for defenders of the “blackout” focuses on how big a loophole in campaign finance law might be opened if the Court were to strike down the “blackout” provisions or to narrow them. The FEC and the lawmakers suggest that WRTL’s ads are the very kind of election-influencing advocacy that the Court has long allowed Congress to regulate, and thus a ruling in favor of these ads would impair the whole scheme of trying to stop big-money from dominating federal politics. The FEC concedes that the language Congress chose “may occasionally capture advertisements that demonstrably lack any electoral purpose or effect.” But, since it contends that WRTL’s ads do not fit that description, it urges the Court not to attempt at this point to “define the circumstances, if any, under which corporations can prove a constitutional entitlement to an exemption” from the “blackout.”
The four lawmakers contend that the District Court’s “blinkered approach” to the broadcast ban “threatens to undo the work that Congress did in BCRA, and that this Court upheld in McConnell, to close the ‘issue ad’ loophole — not only for non-profit advocacy groups like WRTL, but for all business corporations and unions.”
Groups that work to preserve campaign finance restrictions or seek election reform, especially reducing the influence of cash — such as the League of Women Voters and Common Cause — perceive the same threat if the “blackout” is cast aside. In a brief joined by those two groups and others, they contend that WRTL seeks an exception “large enough to swallow up” the entire electioneering communications section of BCRA. The aim of such ads, they assert, “is candidate, not legislative, advocacy.”
The FEC and those on its side also urge the Court strongly to let the courts explore the entire context in which a supposed “grassroots lobbying” ad is broadcast during election season, to help determine whether its true aim was to influence voters’ choice. If that were done with the WRTL ads, the lawmakers’ brief says, it would be abundantly clear that WRTL had aimed “to call into question Feingold’s fitness to continue serving in the Senate.”
Wisconsin Right to Life in its merits brief has sought to turn the dispute into one on a grand scale — a fundamental test of “the power of government officials to prevent the people from criticizing official actions.” The “deep roots of this case,” it says, lie not in the 2002 law, or earlier provisions of U.S. law, or even in the First Amendment itself, but in the struggle to make people free that runs back “three centuries prior to the Declaration of Independence.”
WRTL is joined by a list of amici significantly lengthier than that supporting the FEC and the lawmakers. Groups ranging from the American Civil Liberties Union to the National Rifle Association, from the AFL-CIO to the U.S. Chamber of Commerce — argue that the sweep of the “blackout” clauses as advanced by the FEC and its amici would leave “very few speakers” with a chance to make an as-applied challenge to the “blackout.” The ACLU contends that, if the limit on those provisions is as thin as “blackout” sponsors want it to be, “the opportunity to bring as-applied challenges is largely a ruse.” The NRA, on the other end of the political spectrum, contends that “the political voices of the NRA’s millions of members have been stifled” by the “blackout” since the McConnell decision, and thus it joins in supporting overruling.
The Court is expected to decide the cases before recessing, probably in late June.
