IV. WRTL - The Roberts Opinion

“[T]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it,” Chief Justice Roberts wrote in WRTL.46 The ruling in McConnell v. FEC, however, did just the opposite.47 Rather than err on the side of free speech, the majority in McConnell accepted the possibility of limiting some constitutionally protected speech in the name of eliminating “express advocacy.”48 In WRTL, Chief Justice Roberts rejected the majority's view in McConnell that it is unnecessary to differentiate between “express advocacy” and “issue advocacy.”49 While express advocacy is designed to explicitly support or reject a candidate; issue advocacy is focused on policy.50 As Chief Justice Roberts correctly notes, candidates, and especially incumbents, run on their record and are tied to their votes on particular legislation.51 While it may be appropriate to limit express advocacy to ensure fairness, debate over today's political issues should not end simply because an election is impending. If anything, greater debate should be encouraged as voters are gearing up to go to the polls.52

In First National Bank of Boston v. Belotti the Court noted that “The freedom of speech . . . guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”53 If the legality of an advertisement is based upon the intent of the organization, the effect will be to chill free speech.54 The Supreme Court has rejected a test based on intent-and-effect time and again.55 The possibility of criminal sanctions if the finder of fact decides the intent of the speech was express rather than issue-based advocacy effectively puts a halt to all speech.56 Thus, the Court is right to reject any test that has such a consequence.

Under the Court's WRTL ruling, groups like the ACLU and other organizations have clear direction from the judiciary when advertising in the future. It is true that the new standard from the Roberts opinion essentially shatters section 203 of the BCRA. However, section 203 significantly curtails issue advocacy, which is protected by the First Amendment. As the ACLU argued in its amicus curiae brief, the year preceding a presidential election is a time of significant legislative debate.57 Corporations and unions have a right for the public to hear their message. As long as there is a strong dose of issue advocacy in the advertisement, the Court has properly said they ought to receive the benefit of the doubt.