Thomas Mann joined former FEC chairman Brad Smith to discuss the real or perceived danger to the McCain-Feingold law, alternative methods of finance reform and more, in a week long debate for the Los Angeles Times. Read the Entire Debate
This case is about the enforcement of a 60-year-old law prohibiting the use of corporate and union general treasury funds for expenditures in federal elections. The law was undermined starting in the 1996 election cycle as corporations and unions found a huge loophole and used their treasuries to fund campaign ads that avoided express words of election advocacy or defeat, thereby earning them a safe legal harbor and the moniker “sham issue ads.” The ads ran close to elections, attacked specific candidates and often barely mentioned issues. The McCain-Feingold Bipartisan Campaign Reform Act (BCRA) defined a new category of electioneering communications that supplemented the express advocacy test. A swath of empirical evidence available to Congress and the courts confirmed that virtually all of the ads meeting this definition were indeed campaign ads. The court in McConnell upheld the constitutionality of this provision but allowed for as-applied challenges to the law based on pure grassroots lobbying and issue advocacy. Federal Election Commission vs. Wisconsin Right to Life, Inc. (WRTL) was such an as-applied challenge.
My view is that the high court went both too far and not far enough in its WRTL decision. Not far enough in the sense that it was unwilling to look at anything other than the language of the ads, even though this was an as-applied challenge to a bright-line test of electioneering communications that had withstood a facial constitutional challenge four years ago. As a non-lawyer, I was bothered by the manufactured nature of the complaint shopped nationally by attorney James Bopp, by the absence of timeliness of the ostensible lobbying effort to the Senate schedule and by the various efforts of Wisconsin Right to Life to defeat Sen. Russell Feingold. I would have placed the burden on WRTL to demonstrate that its ads were designed solely to lobby its Wisconsin senators on judicial filibusters. And I would have allowed all relevant contextual information to be brought to bear in supporting or contesting that case.
The court went too far by using this as-applied case to effectively undermine a bright-line test that had already passed constitutional muster — to be sure, without (to Justice Antonin Scalia’s consternation) explicitly overruling that provision of the law. It shifted the burden of proof by declaring the law may not apply to ads meeting the definition of electioneering communications unless no reasonable person would deny that the message advocates for or against a candidate’s election. (Brad, you alone could exempt WRTL’s ads.) In my view, that substitutes a vague and subjective test for the bright-line test in the law, creates uncertainty and incentive once again to game the system, and is likely to hasten a return to corporate and union treasury funding of campaign ads. Even if it chose to side with WRTL, the court could have left the electioneering communications provision intact and approved an as-applied exemption based on WRTL’s nonprofit status and/or explicit and exclusive lobbying activity.
A shift of one justice has led to a dramatic reversal of course in only four years. And much more is likely on the way.