Round Two: Wisconsin Right to Life v. FEC
In a striking victory for campaign finance reform, the U.S. Supreme Court in 2002 upheld nearly all elements of the McCain-Feingold campaign finance law, known as the Bipartisan Campaign Reform Act (BCRA). Public Citizen played a major role in pressuring Congress to enact BCRA and assisted in its legal defense. [McConnell v. FEC]
But we are back in court. Today, the court once again heard oral arguments in a case challenging the fundamental premise of the campaign finance law: the definition of a campaign ad subject to the contribution limits and disclosure requirements of election law.
Prior to BCRA, only ads that used one of eight “magic words” – such as “vote for,” “elect,” “vote against” – were classified as campaign ads subject to restrictions on money in politics. Ads that did not use any of the magic words were deemed “issue ads” outside the limits and disclosure requirements. Issue ads could be paid for by unregulated money, money that is illegal in federal elections, and the sources of the funds could remain hidden in the shadows.
A series of studies, including Buying Time 2000 by this author, found that nearly all broadcast ads that air within 60 days of a general election, mention a candidate and target that candidate’s voting constituency – whether or not any of the magic words are used – are in fact ads that are intending to promote the election or defeat of candidates. These campaign ads, although they often criticize or praise candidates about issues, are really “sham” issue ads because their goal is election-related.
BCRA redefined campaign ads subject to regulation to include broadcast ads that: 1) depict a candidate; 2) immediately before an election; and 3) target that candidate’s voting constituency. The 2002 McConnell Court agreed that the new definition closer reflected the reality of campaign advertising – even candidate ads rarely say “Vote for me!”
The McConnell Court [pdf] reasoned that the new definition is not overly burdensome. In the court’s own words: “The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief pre-election time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. Nevertheless, the vast majority of ads clearly had such a purpose. Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.”
In the case – Wisconsin Right to Life v. FEC – the anti-abortion group seized upon an ad it sponsored in Wisconsin immediately before the 2004 election criticizing Sen. Russell Feingold (who was up for election that year) for threatening to filibuster President Bush’s judicial appointments. Wisconsin Right to Life claims this was an issue ad, and that the new court should reverse its earlier ruling and provide wide latitude for exceptions to the law for issue ads. Preferably, the Wisconsin group argued, any ad that deals with a current issue and avoids the magic words should be immune from the contribution limits and disclosure requirements of election law.
According to the Buying Time study, almost all the sham issue ads that were in fact electioneering ads also mentioned a so-called “issue” and avoided the magic words. Take, for example, an ad by Americans for Job Security right before the 2000 presidential election between Al Gore and George Bush:
“Are you taxed enough already? Not according to Al Gore. Gore plans to squeeze more money out of middle class families at the gas pump.
“Gore cast the tie-breaking vote to raise gas taxes 4.3 cents a gallon. He admits he’ll add more taxes on gasoline with what he calls a CO2 tax.
“And Gore’s ideas are so extreme. If they ever came to pass, Americans would truly be Gored at the pump.”
Clearly this is an ad intended to affect the election of Al Gore – but it mentioned gas prices and avoided the magic words, so its sponsors claimed it as an issue ad and paid for it with unregulated and undisclosed money. A half billion dollars in illegal money (known as “soft money”) helped pay for ads like these in the 2000 and 2002 federal elections.
Wisconsin Right to Life wants to return to the past. Justice Breyer fully understood the gravity of the anti-abortion group’s challenge to the new campaign finance law. Breyer said from bench: “If we agree with you in this case, goodbye McCain- Feingold.”
…And hello to the old days of illegal corporate money, secretly raised and spent, buying wave after wave of television ads attacking candidates right before the election – but, heaven forbid, never telling us to vote for or against them.