Today, former FEC chairman Smith and Brookings Institution fellow Mann discuss the aftermath of the Supreme Court’s ruling in an important campaign finance case. Later this week, they’ll debate the real or perceived danger to the McCain-Feingold law, alternative methods of finance reform and more.
60 years of law undermined
By Thomas E. Mann
This case is about the enforcement of a 60-year-old law prohibiting the use of corporate and union general treasury funds for expenditures in federal elections. The law was undermined starting in the 1996 election cycle as corporations and unions found a huge loophole and used their treasuries to fund campaign ads that avoided express words of election advocacy or defeat, thereby earning them a safe legal harbor and the moniker “sham issue ads.” The ads ran close to elections, attacked specific candidates and often barely mentioned issues. The McCain-Feingold Bipartisan Campaign Reform Act (BCRA) defined a new category of electioneering communications that supplemented the express advocacy test. A swath of empirical evidence available to Congress and the courts confirmed that virtually all of the ads meeting this definition were indeed campaign ads. The court in McConnell upheld the constitutionality of this provision but allowed for as-applied challenges to the law based on pure grassroots lobbying and issue advocacy. Federal Election Commission vs. Wisconsin Right to Life, Inc. (WRTL) was such an as-applied challenge.
My view is that the high court went both too far and not far enough in its WRTL decision. Not far enough in the sense that it was unwilling to look at anything other than the language of the ads, even though this was an as-applied challenge to a bright-line test of electioneering communications that had withstood a facial constitutional challenge four years ago. As a non-lawyer, I was bothered by the manufactured nature of the complaint shopped nationally by attorney James Bopp, by the absence of timeliness of the ostensible lobbying effort to the Senate schedule and by the various efforts of Wisconsin Right to Life to defeat Sen. Russell Feingold. I would have placed the burden on WRTL to demonstrate that its ads were designed solely to lobby its Wisconsin senators on judicial filibusters. And I would have allowed all relevant contextual information to be brought to bear in supporting or contesting that case.
The court went too far by using this as-applied case to effectively undermine a bright-line test that had already passed constitutional muster to be sure, without (to Justice Antonin Scalia’s consternation) explicitly overruling that provision of the law. It shifted the burden of proof by declaring the law may not apply to ads meeting the definition of electioneering communications unless no reasonable person would deny that the message advocates for or against a candidate’s election. (Brad, you alone could exempt WRTL’s ads.) In my view, that substitutes a vague and subjective test for the bright-line test in the law, creates uncertainty and incentive once again to game the system, and is likely to hasten a return to corporate and union treasury funding of campaign ads. Even if it chose to side with WRTL, the court could have left the electioneering communications provision intact and approved an as-applied exemption based on WRTL’s nonprofit status and/or explicit and exclusive lobbying activity.
A shift of one justice has led to a dramatic reversal of course in only four years. And much more is likely on the way.
Thomas E. Mann, the W. Averell Harriman Chair and Senior Fellow in Governance Studies at the Brookings Institution, was an expert witness in the 2003 case McConnell vs. FEC, which upheld most of the McCain-Feingold campaign finance law. He is co-author of “The New Campaign Finance Sourcebook “and “The Broken Branch.”
Look at the facts of the case
By Bradley Smith
Let’s start by reviewing the actual facts of this case.
By the summer of 2004, Democrats in the U.S. Senate had been using the filibuster for months, and in some cases years, to prevent confirmation votes on a number of President Bush’s judicial nominees. Republican Senate leaders vowed a major effort to break the filibusters after Congress returned from its summer recess, before the fall elections. Wisconsin Right to Life (WRTL), a nonprofit membership corporation, cared deeply about seeing these nominees most of whom were believed to harbor pro-life views take their places on the federal bench. So it wanted to run broadcast ads urging voters to contact Wisconsin’s senators, Democrats Herb Kohl and Russ Feingold, to ask them to oppose further filibustering. The ads did not mention the position either senator had taken on filibusters; they said nothing about the senators’ respective qualifications for office, or about any political party or any election. The ads were to be run congruent with the summer recess, when the senators were likely to be meeting with voters in the state, and with the run-up to the anticipated pre-election vote on filibusters. But because Sen. Feingold was seeking reelection, and this period fell within 30 days of Feingold’s primary (in which he was unopposed) and later within 60 days of his general election, the McCain-Feingold campaign finance law prohibited WRTL from airing the ads.
You may disagree, Tom, but I suspect that relatively few Americans would oppose the holding of this case, which upheld WRTL’s right to run these ads. If the 1st Amendment does not protect the right of a nonprofit membership group to attempt to persuade other citizens of the rightness of its position at the time when an issue is reaching a climax, what does it mean? So in that most basic respect, the case did not go too far.
Meanwhile, the ruling still leaves groups such as WRTL (or Planned Parenthood, if you prefer) with fewer speech rights than before McCain-Feingold was passed (your talk about the “60-year-old law” notwithstanding, there is no doubt that this ad would have been legal prior to McCain-Feingold), and with less constitutional protection for their speech than the Supreme Court gives to internet pornography, liquor ads, flag burning, cross burning in a minority neighborhood or the dissemination of illegally acquired information. Under this decision, such a group must still request permission from the Federal Election Commission to run such ads, or risk prosecution and hope to win in court. I would say, therefore, that in the broadest sense the decision doesn’t go nearly far enough.
Nevertheless, precedent should not be lightly overruled, nor should judges decide more than is presented to them. The challenge was, as you note, a narrow, as-applied challenge to the application of the law in this particular instance. So I’d have to conclude that the high court got it just about right.
Bradley Smith served as commissioner on the Federal Election Commission from 2000 to 2005, and as chairman of the commission in 2004. Currently professor of law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics, he is the author of “Unfree Speech: The Folly of Campaign Finance Reform” (Princeton University Press, 2001).
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