Quick look: FEC v. Wisconsin Right to Life

Wednesday, June 27, 2007

Case name: Federal Election Commission v. Wisconsin Right to Life consolidated with McCain et al., v. Wisconsin Right to Life

Background: Wisconsin Right to Life attempted to air broadcasts in 2004 urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl and encourage them not to filibuster President Bush’s judicial nominees. Feingold, a co-author of the 2002 campaign-finance law, was up for re-election in 2004. The group was prevented from airing the ads. The issue of the consolidated cases concerned the provision of the McCain-Feingold law preventing airing of issue ads that cast candidates positively or negatively, without directly encouraging or discouraging voters to elect them, before an election.

Ruling: The Supreme Court ruled 5-4 that the anti-abortion group should have been allowed to broadcast the ads in the two months preceding the 2004 elections, saying that the law went too far in limiting First Amendment free-speech rights of the group. Chief Justice John Roberts and Justice Samuel Alito said the group’s ads are not covered in the McConnell v. FEC decision.

Verbatim: “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the ‘functional equivalent’ of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy … . Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Lineup: Chief Justice Roberts wrote the majority opinion, in which he was joined by Justice Samuel Alito in part. Justices Alito and Antonin Scalia wrote separate concurrences. Alito said the Court would revisit the law and declare it unconstitutional in all cases if the Court’s new standard still “impermissibly chills political speech” in practice. Justice Scalia wrote that he would overrule the Court’s upholding of Section 203 (a) of BCRA in the McConnell decision, but otherwise agreed with the majority opinion. Justices Kennedy and Thomas joined the Scalia opinion, which declared the issue-ad provision of the McCain-Feingold law to be unconstitutional. Justice David Souter wrote the dissent, in which he said that Congress will now be “powerless” to regulate use of corporate and union funds to influence campaigns. He was joined in the dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

First Amendment impact: The decision can be interpreted as overturning much of the ruling in McConnell v. FEC, as the majority found that part of the McCain-Feingold law was unconstitutional as applied in this case. Under the recent decision, corporations and unions can air pre-election ads that mention candidates by name, which was previously banned 30 days before a primary and 60 days before a general election. Attorney James Bopp Jr., representing the Wisconsin group involved in the case, said, “The Court has now restored to the people the most effective means, broadcast ads, for efforts to influence incumbent politicians when they pass laws to tax and regulate us.”

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