Summary of Supreme Court Decision in FEC v. Wisconsin Right to Life
It is all but certain that corporations and unions will pour hundreds of millions of dollars in treasury funds into electioneering communications in the next election.
Brennan Center for Justice at NYU School of Law
Summary of Supreme Court Decision
FEC v. Wisconsin Right to Life, Inc. (2007)
passage of the Bipartisan Campaign Reform Act of 2002 ("BCRA"), an ad
was subject to campaign finance regulation only if it was "express
advocacy" - an ad for or against a candidate that used "magic words,"
such as "vote for" or "vote against." So-called "sham issue ads"
(campaign ads that simply avoided "magic words") were funded the same
way as genuine issue ads (ads taking a position on a public issue).
There were no limits on who could buy the ads, no limits on how they
were financed, and no disclosure was required. Hundreds of millions of
dollars of corporate and union treasury funds, which could not legally
be used to influence elections, poured into federal campaign
advertising through the "sham issue ad" loophole. BCRA closed this
loophole by banning the use of corporate and union treasury funds for
"electioneering communications"- broadcast ads aired during the
pre-election period, referring to a candidate and targeting the
candidate's constituents. In December 2003, the U.S. Supreme Court
upheld the constitutionality of this provision in McConnell v. FEC.
Senator Russ Feingold's 2004 campaign, Wisconsin Right to Life ("WRTL")
ran ads urging viewers to tell him to oppose the filibuster of
President Bush's judicial nominees. The ads, which were part of a long
campaign by WRTL to oust Senator Feingold, ran while the Senate was in
recess and could not vote on judicial nominees, but ceased once Senator
Feingold won re-election, even though the filibuster again became an
issue. Although WRTL raised substantial corporate treasury funds for
its operations, it argued that BCRA could not constitutionally be
applied to its ads, because they were issue advocacy. On June 25, 2007,
the U.S. Supreme Court agreed (5-4).
BCRA could not be applied to WRTL's ads, because they were
not "the functional equivalent of express advocacy" for or against a
An ad is "the functional equivalent of
express advocacy" only if it is "susceptible of no reasonable
interpretation other than as an appeal to vote for or against a
WRTL's ads were not the "functional equivalent of express advocacy" for two reasons:
their content is consistent with that of a genuine issue ad: The ads
focus on a legislative issue, take a position on the issue, exhort the
public to adopt that position, and urge the public to contact public
officials with respect to the matter."
"Second, their content
lacks indicia of express advocacy: The ads do not mention an election,
candidacy, political party, or challenger; and they do not take a
position on a candidate's character, qualifications, or fitness for
In applying the test, courts are generally
barred from considering contextual evidence and may allow only "minimal
if any discovery."
The intent of the advertiser and the
effect of an ad are irrelevant to whether it is "the functional
equivalent of express advocacy." McConnell should not have considered
the purpose of electioneering communications in holding that they could
be treated as express advocacy.
BCRA is still good law. The Court did not overrule
McConnell, and it did not invalidate BCRA. Corporations and unions may
not use treasury funds for electioneering communications, unless a
court rules that BCRA does not apply to ads they are running.
State laws regulating electioneering communications are still valid.
decision does not affect the law's requirement for disclosure of
electioneering communications. WRTL did not challenge the obligation to
disclose the amount it spent on its ads, and the Court did not address
The new test is not the same as the "magic
words" test. The test is similar to the "reasonable person" standard
that has been in effect in the Ninth Circuit since 1987. Even after
passage of BCRA, that standard applied to ads that did not qualify as
"electioneering communications" because they were run before the
statutory pre-election period.
The opinion described above was written by Chief Justice
Roberts and joined only by Justice Alito, although Justices Kennedy,
Scalia, and Thomas concurred in the result. Seven justices (the three
who endorsed the outcome of the opinion, but not its reasoning, and
four who dissented completely) agreed that the Chief Justice
effectively overturned a key portion of McConnell, even though he
denied doing so and technically did not do so.
has in effect invited a new facial challenge to BCRA's restrictions on
the use of corporate and treasury funds for electioneering
communications. In other words, it is likely that someone will bring a
new lawsuit asking the Court explicitly to overturn McConnell and to
extend the reasoning of WRTL to all ads that qualify as issue advocacy
under WRTL's new test. There appear to be five justices who would be
prepared to do so.
Practically, it is all but certain
that corporations and unions will pour hundreds of millions of dollars
in treasury funds into electioneering communications. We can expect a
flood of ads aired immediately before federal elections that take care
to take a position on an issue and exhort the public to contact elected
officials. The shadings between attacks on candidates' views on the
issues and attacks on their character may be difficult to discern. If
the FEC tries to enforce BCRA, the corporations and unions will claim
that their ads are issue advocacy and assert as-applied challenges to
BCRA in their defense.