Matthew Modell 1

In June 2007, the United States Supreme Court ruled in FEC. v. Wisconsin Right To Life (“WRTL”), by a 5-4 decision, that section 203 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) was unconstitutional.  The Court's majority, however, could not agree to why BCRA was unconstitutional. The opinion by Chief Justice John Roberts held that there is a distinction between “issue advocacy” and “express advocacy” in the context of federal elections, and it was constitutionally impermissible for them to be lumped together. The concurring opinion by Justice Scalia held section 203 never should have been upheld in McConnell v. FEC, and BCRA is facially unconstitutional. The effect of the WRTL decision is that corporations and unions may now broadcast issue ads on television and radio using their general treasury funds in the days leading up to a federal primary or general election.

I. Introduction

Freedom of speech is only free if it is unencumbered from governmental restrictions. Congress, in its infinite wisdom, has determined that in order to protect one's right to speak and be heard in the federal elections process, there must be some restrictions in the money spent and donated by individuals, organizations, unions, political action committees (PACs), and candidates. The Bipartisan Campaign Reform Act of 20022 (“BCRA”) is Congress' latest attempt to keep “soft money” out of politics. Section 203 of BCRA bans corporations and unions from using general treasury funds on radio and television ads within thirty days of a primary election and within sixty days of a general election.3 On a facial challenge to this law in McConnell v. FEC,4 the United States Supreme Court upheld this ban. This law was challenged again in 2003 when a nonprofit corporation, Wisconsin Right to Life, Inc. (“Life”), challenged this provision of BCRA. Life believed the McConnell ruling precluded them from running radio ads advocating for Senators Kohl and Feingold to end the filibuster against President Bush's judicial nominees.5 Had Life persisted in trying to air these ads, stations may have refused to air them. If a station had aired the ads, Life would have potentially faced criminal charges.6 In 2008, however, Life will be able to run these or similar advertisement because of the Supreme Court's ruling in FEC v. Wisconsin Right to Life.7

This paper argues that the opinion by Chief Justice John Roberts correctly chooses to protect free speech, rather than uphold campaign finance restrictions at the expense of some constitutionally protected speech. Roberts held in WRTL that there is a distinction between express advocacy and issue advocacy, and it is unconstitutional to preclude express advocacy at the expense of issue advocacy.8 An express advocacy ad is one intended to influence through an appeal to vote for or against a candidate.9 Express advocacy ads contain phrases such as “vote for,” “elect,” or “vote against.”10 An issue advocacy ad promotes a position on an issue, such as judicial appointments, instead of the election of a specific candidate.11 An issue advocacy ad may mention one or more politicians, but the primary purpose of the ad is to advocate a position on an issue. Roberts concluded the WRTL opinion by stating, “[w]hen it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban . . . the Court should give the benefit of the doubt to speech, not censorship.”12 Thus, given the choice, Roberts argues the government must err on the side of too much political speech.13

The Internet provides for practically unlimited speech, as the barrier to entry is low, and unlike television and radio, space on the Internet is unlimited. The restrictions in section 203 of BCRA do not limit newspapers, so these limitations should not be placed on television and radio advertisements.14 No special clause giving preference to print media over other technological means of communication exists in the Constitution. Instead, more accurate, timely, and accessible disclosure information as to who is making the donations should be required. To solve the “express advocacy” versus “issue advocacy” dilemma, the disclosure requirements should apply equally to both forms of advocacy.

Part II of this paper will focus on the ramifications of section 203 of BCRA, before the WRTL decision. Part III will discuss the facts surrounding the WRTL decision. Part IV will analyze the arguments for why this decision was proper. Part V will look critically at the decision and contrast the arguments made in Part IV. Finally, Part VI will discuss the post-WRTL world, how the Court's decision may affect the 2008 election, and what changes should be made to our campaign finance laws in the future, including those being considered by the FEC.