When campaign money can't talk

After the high court's ruling, Congress and the FEC must find new ways to curb big money's influence in ads.

from the June 27, 2007 edition

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The case involved a FEC ban on a 2004 ad by the Wisconsin Right to Life that criticized a Democratic senator – up for reelection – over his stance on filibustering antiabortion court nominees. Even though that group had also campaigned against the senator, the chief justice says those particular ads "are plainly not the functional equivalent of express advocacy."

Mr. Roberts's tortured legal distinctions will merely open the courts to any number of cases about campaign ads that are borderline in their advocacy, or able to craftily disguise advocacy for or against a candidate under the cloak of an "issue ad." That's why Congress wanted a flat ban on political ads just before elections.

"The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly," wrote Justice David Souter in dissent. Even a justice who voted in the majority, Antonin Scalia, called the legal distinction "a line in the sand drawn on a windy day."

The ruling may also have the perverse effect of allowing more critical ads for candidates who hold office, such as Sen. John McCain, than for candidates out of office, such as former Gov. Mitt Romney. An "issue ad" against a candidate out of power doesn't make sense.

Roberts's attempt at trying to find a middle ground between free speech and an antigraft law is a noble but misguided attempt to be Solomonic on campaign finance.

Unless a similar case comes up soon before the court, Congress and the FEC are left with the urgent task of writing new rules to easily spot, and thus ban, advocacy ads masquerading as issue ads. It's not too late to reduce the influence of money in the 2008 campaigns.

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