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V. A Setback for Campaign Finance and Free Speech
The day after the Court issued its opinion in WRTL, the New York Times published an editorial entitled “Three Bad Rulings.”
The Times' Editorial Board decried the ruling as reversing McConnell and section 203, which had been constructed “to prevent corporations and labor unions from circumventing the ban on their spending in federal campaigns by bankrolling phony 'issue ads.'”
The dismissal of the Court's differentiation between “express advocacy” and “issue advocacy” advertisements is the crux of the objection to the Court's ruling. The New York Times and groups like Democracy 21 argue that while there may be a difference between “express advocacy” and “issue advocacy” advertisements, the difference is negligible leading up to an election, as both types of ads have the same intended effect, which is to influence voters.
Thus “issue ads” serve as the functional equivalent to “express ads.”
The dissent argues the political advocacy banned in section 203 was practically indistinguishable from any protected speech,
and thus it was appropriate to uphold a ban of this speech within the timeframe allotted by the statute.
The Center for Governmental Studies (“CGS”)
asserts that section 203 provides a bright-line test of what can and cannot be advertised as well as a timeline for permissible advertising.
This bright-line test advocated by the CGS and supported in McConnell is necessary to maintain effective campaign finance laws and to prevent campaign finance abuse.
This sentiment is echoed by the dissent in WRTL.
Specifically, Justice Souter noted that no evidence suggests the bright-line rule, set by section 203 and affirmed in McConnell, is difficult to apply.
Thus, the only question for Justice Souter is whether the bright-line test is politically viable in application.
Before this bright-line test there was the “magic words” test. Justice Souter argued that, following the majority opinion in WRTL, the “magic words” standard is once again in effect-stating: “The Chief Justice thus effectively reinstates the same toothless magic words criterion of regulable electioneering that led Congress to enact BCRA in the first place.”
Quoting from McConnell, Justice Souter also argued:
The presence or absence of magic words cannot meaningfully distinguish electioneering speech, which is prohibitable, “from a true issue ad,” we said, since ads that “eschew the use of magic words . . . are no less clearly intended to influence the election.” We thus found “little difference” . . . between an ad that urged viewers to 'vote against Jane Doe' and one that condemned Jane Doe's record on a particular issue before exhorting viewers to 'call Jane Doe and tell her what you think.'
Democracy 21 correctly notes that by avoiding the “magic words,”
corporations and labor unions will be significantly better-protected as a result of the ruling in WRTL.
Democracy 21 thus argues that the WRTL ruling opens the floodgates, allowing corporations and unions to pour money into the 2008 election, thereby increasing the likelihood of corruption.
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