Where Campaign Finance Reform Meets Freedom of Speech: Supreme Court to Rule on Issue Ads

Where Campaign Finance Reform Meets Freedom of Speech: Supreme Court to Rule on Issue Ads

by Michelle Kaminsky, Esq., December 2009

The Supreme Court will soon be hearing oral arguments and handing down a decision that could greatly affect how we view the upcoming presidential election—on television at least.

The debate is over whether so-called issue ads, those that endorse specific causes and are funded by labor unions, special interest groups, and corporations, can be banned 60 days before a general election and 30 days before a primary; such ads are prohibited from even mentioning a particular candidate or party.

As part of the Bipartisan Campaign Reform Act, often referred to as the McCain-Feingold Act, the limit on issue ads was meant to control the influence of big spenders in elections, prohibiting them from making last-minute pushes. This "blackout period," upheld by the Supreme Court 5-4 in 2003, was intended to stop "phony issue ads" through which viewers are urged to contact a member of Congress about a particular issue, subtly supporting or opposing that congressperson's re-election.

But in July 2004 during Democratic Senator Russell Feingold's own re-election campaign, the anti-abortion group Wisconsin Right to Life, Inc. introduced ads urging citizens to call their senators to express disapproval of congressional filibusters, supported by Feingold, against President Bush's judicial nominees.

Wisconsin Right to Life (WRTL) sued the Federal Election Commission (FEC) when it blocked the ads insisting that they were election ads and had to follow the regulations of the McCain-Feingold Act. WRTL countered that the FEC had violated its right to freedom of speech, having infringed upon the right of citizens "to petition the government for a redress of grievances." WRTL emphasizes that the ad mentioned both senators—not just the one up for re-election.

A federal appeals court agreed with WRTL with a 2-1 vote and ruled that the ads were general issue ads not intended to influence voters. U.S. District Judge Richard Leon wrote that "[t]he language in . . . the advertisements does not mention an election, a candidacy or a political party, nor do they comment on a candidate's character, actions or fitness for office."

Supporters of the campaign finance law, including at least a handful of members of Congress on both sides of the aisle, argue that a ruling against the FEC could create a giant loophole for special interest groups to create spots that are thinly veiled as issue ads but really act to advocate for or against a candidate.

Indeed, Judge Robert W. Roberts touched on this point in his dissent, writing that a review of only the language of the ads was too simplistic an approach and that the FEC and the courts should be looking at the intent behind the ads to determine whether they should be regulated.

And shortly the Supreme Court will get yet another chance to look at the McCain-Feingold Act; it has consistently upheld the constitutionality of key provisions, but has also left the door open for individual challenges.

The 2003 ruling saw the Court's four liberals plus Justice Sandra Day O'Connor make up the majority; as the Court's make-up has shifted considerably since then, it's difficult to predict how the votes will fall this time around—and what we'll be seeing on television throughout 2008.