At issue is a major provision of the five-year-old law that bars corporations and labor unions from paying for advertisements that mention the name of a candidate for federal office and that are broadcast during the weeks preceding an election. By a 5-to-4 vote in December 2003, the court held that the provision, on its face, passed First Amendment muster.
But a new majority may view more expansively the Constitution’s protection of political messages as free speech and invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear.
The argument today was over whether, despite the 2003 blanket endorsement, the law would be constitutional if applied to three specific advertisements that an anti-abortion group sought to broadcast before the 2004 Senate election in Wisconsin.
The advertisements, sponsored by Wisconsin Right to Life Inc., mentioned the state’s two senators, both Democrats: Russell D. Feingold, a co-sponsor of the McCain-Feingold law and who was up for re-election, and Herb Kohl, who was not. The advertisements’ focus was a Democratic-led filibuster of some of President Bush’s judicial nominees. Viewers were urged to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” The advertisements provided no contact information, instead directing viewers to a Web site that presented explicit criticism of Mr. Feingold.
A special three-judge Federal District Court here ruled that because the text and images of the advertisements did not show that they were “intended to influence the voters’ decisions,” they were “genuine issue ads” that the government could not keep off the air.
Solicitor General Paul D. Clement, arguing on behalf of the Federal Election Commission, told the justices that if these advertisements qualified for an exception to the law’s ban on issue ads that mention a candidate for federal office right before an election, so would many or most others, leaving the statute “wide open.” Describing the advertisements as typical of those the court had reviewed as part of the record when it rejected the initial challenge to the law, he said that a finding that these could not be regulated “just seems inconsistent” with the earlier ruling.
Chief Justice John G. Roberts Jr. turned the solicitor general’s argument against him. It was Mr. Clement who was being inconsistent, the chief justice said, noting that in an earlier phase of this case a year ago, the Supreme Court had ruled that the provision could be challenged “as applied” on a case-by-case basis.
If the Roberts court were writing on a clean slate, a broad declaration of unconstitutionality might well be the result. But the court’s 2003 decision in McConnell v. Federal Election Commission, upholding the law, is so recent as to make such a bold step unlikely. Instead, many election law experts believe the fate of the statute may depend on how broad an exception the court carves out through its handling of this or future “as applied” challenges.
The four dissenters from the 2003 decision were Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, all of whom are still on the court, and Chief Justice William H. Rehnquist. Chief Justice Roberts appeared fully prepared to step into his predecessor’s shoes. So all eyes were on the court’s other newcomer, Justice Samuel A. Alito Jr., who as the successor to Justice Sandra Day O’Connor, a co-author of the 2003 decision, probably holds the balance.
For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.
What would happen, Justice Alito asked Mr. Waxman, if a group had been running an advertisement about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?
That would depend on the context, Mr. Waxman replied.
Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the AFL-CIO.
“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, had both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.
Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”
The law’s most vigorous defense from the bench came from Justices Stephen G. Breyer and David H. Souter. “If we agree with you in this case, good-bye McCain-Feingold,” Justice Breyer told Mr. Bopp. His point was that there is an inextricable link between the law’s two major provisions, the advertising restriction and the ban on the receipt and expenditure by political parties of unregulated “soft money” from corporations and unions. If corporations can underwrite television ads, which are “the single best way to get somebody defeated or elected,” Justice Breyer said, then “forget the rule that corporation’s can’t contribute.”
The statute permits corporations and unions to pay for ads from segregated funds called political action committees, whose donors’ names are disclosed and whose contributions and spending are regulated, rather than directly from their treasuries. Mr. Bopp argued that this restriction was unduly burdensome.
The significance of the eventual ruling in this case, Federal Election Commission v. Wisconsin Right to Life, Inc., No. 06-969, may depend on what standard the court sets for distinguishing genuine issue ads from the “electioneering communications” that the law seeks to regulate.
The district court’s decision said that judges should restrict themselves to examining the “four corners” of the ad itself: if its language does not exhort viewers to take action, it passes the test and must be permitted even if the message, seen in a broader context, was perfectly clear.
Mr. Bopp said this restriction was essential so that an ad’s validity would be “reasonably ascertainable” in advance and not depend “upon the varied understandings of the listener.” The only test is “what do the words say?” he said.
The law’s supporters argue that many “sham” issue ads will escape regulation unless courts can evaluate them in the context in which voters will understand them. “The question is, what do the words mean?” Justice Souter told Mr. Bopp, adding: “It is impossible to know what the words mean without knowing the context in which they are spoken.”