A Supreme Court ruling has poked a hole in a 2002 law aimed at reducing money's sway in elections. As it is, the law didn't stop $2 billion from being spent in the 2006 elections. For 2008, the floodgates are now open even wider.
Fixing the Bipartisan Campaign Reform Act of 2002 will require that Congress and the Federal Election Commission do a fine-combed reading of Monday's ruling by the high court. The 5-to-4 decision, dominated by a new conservative majority, raises critical constitutional issues about the balance between free-speech rights and the need of citizens not to have the votes of their lawmakers corrupted by big-monied interests.
The good news is that the court upheld two key provisions of the law. There is still a prohibition on "soft money," or donations to political parties, and a ban on radio and TV ads from unions and corporations that promote federal candidates 60 days before an election or 30 days before a primary. At the least, with this ruling, a slim majority of justices affirms that the First Amendment must bend somewhat for the greater good of saving democracy from the antidemocratic power of unions and corporations.
But the court, or rather Chief Justice John Roberts writing alone, ruled that any ads which "may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate" must be allowed. In other words, ads about political issues that also negatively mention an incumbent lawmaker running for office are legitimate expressions of opinion.
"Where the First Amendment is implicated, the tie goes to the speaker, not the censor," he wrote.
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.