Election Law blog looks to the Wisconsin Right to Life v. FEC ruling and suggests the Supreme Court is moving toward deregulating campaign ads. This gets technical, but the third paragraph below sums up the implications for campaign advertising.

This unanimous per curiam opinion makes essentially two points. First, that a footnote in the Supreme Court's earlier 5—4 McConnell opinion was not intended to preclude "as applied" challenges. That is, if corporate or union plaintiffs can prove that they are running "genuine issue ads," it can be unconstitutional to apply the electioneering communications provisions to them (at least insofar as barring the use of corporate or treasury funds to pay for these ads). Second, that the lower court opinion was unclear as to whether it held that the ad in question (one that attacked Senators Feingold and Kohl (only Feingold was running for reelection) for their position on the filibustering of judicial nominees) was really an election ad that McConnell held it was permissible to regulate.

What is the significance of this ruling? In the short term, the greatest significance is that it allows the Supreme Court to put these issues over to another day. With Justice O'Connor leaving and a new Justice presumably coming in soon, the Court would have faced the possibility of reargument or, assuming Justice O'Connor would have recused, an affirmance by an equally divided Court. Reargument would have thrust the two newest Justices into a difficult position where their votes presumably would be dispositive.

Longer term, the opinion could be significant. First, it gets the courts and the FEC into the business of separating genuine issue ads from sham isue ads. The irony of course is that the bright line electioneering communications provision was sold as having the benefit of keeping the courts out of this mess. It is sometimes going to be impossible to determine whether an advertiser had an electioneering motive, as the facts of this case well demonstrate. It could be that the courts craft a tough test for plaintiffs to fit into this as applied exception. Or, if as I've suggested, the Supreme Court could well be moving toward more deregulation of campaign finance, this could be an important first step toward undermining McConnell without overruling it.

For those of us who feel McConnell was wrongly decided and an improper intrusion on the First Amendment in its most important form——political speech——this development is welcome.

hat tip: Just One Minute 

Clarice Feldman   1 23 06