Court clips campaign-finance law

US election law has long banned corporations and unions from spending money on electioneering ads – commercials designed to promote or target a specific candidate. But many corporations and unions bypassed the law by running ads discussing issues instead of candidates. Political experts say the more subtle issue ads can sometimes play a powerful role in swaying voters and are often more effective than more blatant electioneering ads.

The concern among sponsors of BCRA was that wealthy interest groups were subverting the democratic process by drowning out the voices of those with fewer financial resources in the critical weeks leading up to federal elections. Elections should be about the free flow of ideas rather than the power of money, reform advocates say.

But some groups complained that BCRA's issue-advertising restrictions went too far by censoring free speech in a way that favors incumbent candidates.

In 2004, the advocacy group Wisconsin Right to Life sought to run three radio and television advertisements urging voters to contact their senators to tell them to oppose an effort by Senate Democrats to filibuster President Bush's judicial nominees (see sidebar).

One of Wisconsin's senators, Democrat Russ Feingold, was up for election in 2004 and since the advertisements were related to a policy position he had taken and mentioned him by name, the ads were deemed to be part of an electioneering effort. The FEC said such ads were banned under BCRA. The law prohibits corporations and labor unions from using general treasury funds for communications "that are intended to, or have the affect of, influencing the outcome of federal elections."

Lawyers for Wisconsin Right to Life said their ads were grass-roots lobbying designed to persuade Wisconsin's senators to oppose filibustering President Bush's judicial nominees.

The FEC disagreed. Such an ad might influence Senator Feingold’s reelection bid by persuading voters that he was unworthy of being reelected. The Wisconsin group was no supporter of Feingold and the intent of the ad appeared to be aimed at hastening his political defeat, the FEC concluded.

The case highlights the murky middle ground between so-called genuine issue ads and “sham” issue ads that are designed to bypass campaign finance restrictions.

After passage of BCRA in 2002, the question of how precisely the law would be enforced was left to the FEC. The agency adopted a broad set of rules that ban most non-PAC ads during election season.

Wisconsin Right to Life challenged the ban in federal court. After several rounds of litigation, a three-judge panel ruled that the issue-ad portion of BCRA was unconstitutional as it had been applied to the group’s ads.

In upholding that ruling, the high court said Wisconsin Right to Life’s ads were neither direct political advocacy or the functional equivalent. The majority justices said the government had identified no reason compelling enough to justify blocking the group’s ads.

“When it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban ... we give the benefit of the doubt to speech, not censorship,” Chief Justice Roberts wrote. “The First Amendment’s command that ‘Congress shall make no law ... abridging the freedom of speech’ demands at least that.”

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