On a 5-4 vote in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the Supreme Court ruled that section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) was unconstitutional, a violation of the First Amendment as applied to certain forms of political speech.
Political speech is the core type of speech protected by the First Amendment. However, both Congress and the courts have also recognized that political activities and speech by certain actors, such as labor unions and corporations, may receive less protection than that offered to individuals because of the potential of labor unions and corporations to corrupt the political process.
Corporations cannot directly influence federal elections through political advertisements
Since 1907 and passage of the Tillman Act, which was followed in 1947 by the Taft-Hartley Act, it has been illegal for corporations and labor unions to undertake activities that seek directly to influence federal elections. Among other provisions, the Tillman and Taft-Hartley Acts prohibited corporations and unions from running political advertisements that seek to influence the election or defeat of a candidate for federal office.
However, it is often difficult to decide whether statements or advertisements made by these actors violate these two laws.
Corporations used ‘issue advocacy’ loophole to run advertisements influencing elections
In Buckley v. Valeo (1976), the Supreme Court distinguished express advocacy from issue advocacy. In arguing that express advocacy included appeals that used what have come to be known as the “magic words” — vote for, elect, support — the Court sought to distinguish electoral speech that would receive First Amendment protection from that which would not, especially when it came to particular speakers such as labor unions or corporations.
The express/issue advocacy distinction supposedly maintained the bar on speech directly affecting federal elections by these and other actors, such as nonprofit organizations, but preserved their First Amendment rights to comment on matters of public concern.
The express/advocacy distinction became a loophole, however. Unions, corporations, and nonprofits all exploited it to influence federal elections by simply running ads that did everything an express advocacy ad did except say “vote for” or “support.” Instead, these ads often asked viewers to call their senator or representatives to ask them why they opposed X.
BCRA defines ‘electioneering communication’ to fill loophole
Section 203 of BCRA was designed to fill in the loophole. It defined as “electioneering communication” any political speech depicting or referring to an identifiable federal candidate and appearing within 30 days of a primary or 60 days of a general election. The speech was presumed to be directed at influencing a federal election. If such ads were made by a corporation or union, they would be illegal.
In McConnell v. Federal Election Commission (2003), the Supreme Court upheld section 203 against a facial challenge, but left open claims that it might violate the First Amendment in an as-applied challenge.
Nonprofit coporation claimed BCRA was unconstitutional
In Wisconsin Right to Life, an ideological nonprofit corporation wanted to run ads urging viewers to contact their senators to oppose efforts to filibuster federal judicial nominations. The ads would run in Wisconsin within 30 days of its primary. To challenge section 203 and its implications for the nonprofit’s ad campaign, Wisconsin Right to Life sought a declaratory judgment against the Federal Election Commission (FEC), claiming that section 203 was unconstitutional.
Initially, a three-judge panel denied Wisconsin Right to Life’s request for an injunction, but the Supreme Court vacated and remanded the decision. A federal district court then agreed with Wisconsin Right to Life, and the Supreme Court upheld the decision.
Court said BCRA violated the First Amendment in this instance
Writing for the Court majority, Chief Justice John G. Roberts Jr. ruled that the ad or speech was not functionally equivalent to expressing advocacy and therefore deserved First Amendment protection.
Because this and similar ads were not clearly directed toward federal candidates, the general justification of section 203 to regulate political contributions or corporate or union speech in order to address corruption was not present. Chief Justice Roberts also stated that, as applied, section 203 was overbroad in banning the type of speech protected by the First Amendment.
In his concurrence, Justice Antonin Scalia argued that the Court had effectively overturned McConnell, whereas, writing in dissent, Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer stated that they would have upheld section 203.
Decision restores express/issue advocacy distinction
The Wisconsin Right to Life decision, then, effectively restores the express/issue advocacy rule to its status before passage of the BCRA. The importance of the decision is that it leaves open the possibility of a return to the types of political ads and speech that BCRA sought to regulate and control.
For advocates of campaign finance reform, this is a step backward, while for many First Amendment supporters it is a protection of core free speech rights.
This article was originally published in 2009. David Schultz is a professor in the Hamline University Departments of Political Science and Legal Studies, and a visiting professor of law at the University of Minnesota. He is a three-time Fulbright scholar and author/editor of more than 35 books and 200 articles, including several encyclopedias on the U.S. Constitution, the Supreme Court, and money, politics, and the First Amendment.