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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.

Published: July 5, 2007

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Bren­nan Center for Justice at NYU School of Law
Summary of Supreme Court Decision
FEC v. Wiscon­sin Right to Life, Inc. (2007)


Before 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.

During 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).

The Decision

  • BCRA could not be applied to WRTL’s ads, because they were not “the func­tional equi­val­ent of express advocacy” for or against a candid­ate.

  • 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 specific candid­ate.”

  • WRTL’s ads were not the “func­tional equi­val­ent of express advocacy” for two reas­ons:

    “First, 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 office.”

  • 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.

Legal Implic­a­tions

  • 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.

  • The 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 that issue.

  • 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.

Prac­tical Implic­a­tions

  • 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.

  • The Court 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.