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VI. A Look Ahead to 2008 and Changes being Considered
Following the WRTL ruling, the FEC announced two alternative proposals on electioneering communications.
The first proposal allows corporations and unions “to use their general treasury funds to pay for electioneering communications that qualify for the exemption the Supreme Court described, but would require financial disclosures to the FEC.”
The second proposal, which is far broader, exempts any communication qualifying under WRTL from both funding restrictions and reporting requirements.
The route chosen by the FEC will largely dictate the impact of WRTL in the 2008 election cycle. If the FEC adopts the first proposal, it will essentially be trying to faithfully uphold the spirit of the BCRA but will largely be ignoring what the Court held in WRTL. This proposal “would incorporate the new exemption into the rules prohibiting the use of corporate and labor organization funds for electioneering communications.”
However, the point of the majority opinion in WRTL was that the ads in question were not actually electioneering communications.
Thus, the problem cannot be solved simply by making an exemption to the definition of electioneering communication, since the Court ruled in WRTL that the ads were never actually electioneering communications. Instead, the Roberts WRTL opinion held that Life's ads were legitimate issue advocacy ads, and thus section 203 was overbroad by including them.
Part of the reason the FEC is struggling with this issue is because the definition of “functional equivalent of express advocacy” is unclear. While the Court said that the BCRA could limit this speech in McConnell,
the Court has all but done away with this idea in WRTL. If the definition of express advocacy is communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,”
what remains to be its “functional equivalent”?
The second proposal offered by the FEC would permit corporations and unions to be just as secretive and unaccountable as 527s have been over the past two election cycles. While this would, in fact, put the FEC in accordance with the Court's ruling, it would move far away from the original purpose of the BCRA, which is to prevent corruption and take some of the soft money out of politics.
However, of the two proposals, this is the one the FEC should adopt. The FEC must recognize it cannot adopt a proposal that completely twists the Court's ruling. The Court did not say that the ads in question were legitimate election ads; it held Life's ads were not in fact election ads and thus must be afforded the First Amendment's protection without limitation.
The campaign finance system in place under the BCRA is far from perfect. The goals are to take money and corruption out of politics, yet both of these goals have failed.
Both the Roberts opinion and the dissent in WRTL recognized preventing corruption as a legitimate and compelling state interest. The restrictions under section 203 did not further this interest. It is difficult to argue that by precluding corporations and unions from advertising, but allowing 527s to operate in secrecy and spend unlimited amounts of cash, corruption is somehow eliminated. Instead of silencing corporations and unions, the campaign finance laws should focus on reporting. In an age of high-speed Internet, requiring corporations, unions, PACs, 527s, political parties, and of course candidates to post meticulous records regarding the source of their money in a timely manner
will go much further in keeping corruption out of politics. Let the voters decide if they mind that twenty-four individuals donated $142 million in one election cycle.
As the WRTL dissent noted, a Governor's Blue-Ribbon Commission on Campaign Finance Reform in Wisconsin reported:
The explosive growth of campaign-based advocacy, without even disclosure of its activities and funding sources, poses a grave risk to the integrity of elections. It has created a two-tiered campaign process: one, based in candidates and political parties, which is tightly regulated and controlled; the other, based in interest group activity under the guise of “issue advocacy” but actually quite clearly election-focused, which lies beyond accountability.
Plenty of wealthy individuals are spending a lot of money on elections every two years. The WRTL ruling is not a defeat for the average American, it is a victory. This ruling allows corporations and unions to once again be heard, and it counter-balances the special interest groups that have had free reign over the microphone in the last two election cycles.
A proposal to meet the constitutional demands set forth in WRTL and keep part of the BRCA's objectives intact would require the FEC to combine the two proposals. First, the Court ruled that the ads in question were not considered “electioneering communications” and thus cannot be limited under the BCRA. This recognition, which is part of the second proposal, must be preserved. Disclosure, as advocated in the first proposal, is most prevalent in preserving the goals of BCRA. Instead, requiring full disclosure on the Internet by all advocacy groups participating in the political process, whether they are 527s, unions, corporations, or individuals, would give people the most information regarding the source of the money they are receiving.
Spending limits may still be applied, but they must be applied equally and must exclude issue advocacy. The voting public will then be capable of accessing this information and assessing how much weight to give a specific advertisement.
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