III. FEC v. Wisconsin Right To Life - The Decision

In the summer of 2004, Life was airing television ads calling for Senators Russ Feingold and Herb Kohl to stop the Democrats' filibuster against President Bush's judicial nominees and to give them an up-or-down vote in the Senate.27 Both senators had a record of filibustering many of President Bush's judicial nominees.28 On August 15, thirty days before the Democratic primary, Life had to stop airing the ads using their general treasury funds, or else risk the prospect of criminal penalties. At that time, section 203 of BRCA still prohibited corporations and labor unions from advertising by any means of “electioneering communication” in which the groups referred to a candidate running for federal office.29 This prohibition went into effect within thirty days of a primary election and sixty days of a general election.30 In this case, Life had to stop advertising thirty days before Senator Feingold's uncontested primary race.31 Life's ability to be heard on the issue of judicial nominees was suspended for the next three months.32 Two election cycles later, in June 2007, the Supreme Court ruled section 203 unconstitutional, so far as it was applied to Life's advertisements and the use of general treasury funds by corporations and unions for “issue advocacy.” The result, a 5-4 decision, brought forward three different views of where corporate communication under section 203 of the BCRA stands.33

While arguing the Court was not overruling the McConnell decision,34 Chief Justice Roberts was joined by Justice Alito in advocating a “new” standard by which corporate ads should be judged.35 The standard holds, “[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”36 Roberts argued this test37 is most appropriate because if intent was a consideration there could be a situation where an ad by one group would be constitutionally protected; whereas the identical ad could bring criminal charges against another group.38

In his concurring opinion, Justice Scalia argued that section 203 “bans vast amounts of political advocacy indistinguishable from hitherto protected speech.”39 He argued that the prohibition in section 203 should be ruled altogether unconstitutional, thereby reversing the Court's decision in McConnell.40 The dissent, written by Justice Souter,41 argued that the Roberts opinion had in fact reversed McConnell, but simply refused to acknowledge this fact.42 Justice Souter argued the Court made the correct decision in McConnell when they allowed express advocacy, or its functional equivalent, to be banned within the statute's time frame.43 Whereas Chief Justice Roberts concluded that the Life advertisements include legitimate issue advocacy,44 the dissent found that these ads should be subject to the regulations held constitutional in McConnell.45