Originally posted on the Broadcast Law Blog.
As we wrote in January, the U.S. Supreme Court decided to revisit the Bipartisan Campaign Reform Act ("BCRA"), insofar as that law prohibited any corporate expenditure on issue ads mentioning the names of candidates during the period 30 days before a Federal primary and 60 days before a Federal general election. In a fractured opinion released this week, the Court upheld a U.S. District Court opinion finding that prohibition unconstitutional as applied to a Wisconsin Right to Life group that had aired ads in 2004 urging voters to contact Wisconsin Senators Feingold and Kohl to oppose a Senate filibuster. The ads did not specifically support or oppose the election of Senator Feingold, who was up for reelection that year, though the FEC had found that any ad mentioning a candidate in the pre-election period was prohibited by BCRA. The decision in the case, Federal Election Commission v. Wisconsin Right to Life, Inc., will no doubt lead to more issue advertising airing on broadcast stations during the 2008 election.
The only thing that a majority of Supreme Court Justices agreed on was that it had jurisdiction to hear this appeal. Chief Justice Roberts, along with Justice Alito, followed the District Court opinion in opining that BCRA was unconstitutional as applied to pure issue ads that happen to mention federal candidates who are up for election. In other words, where it was not clear that the ad was intended to be about the election (as the ad never mentioned the election, only urging voters to complain to Senator Feingold about his position on an issue), the First Amendment rights of the group sponsoring the ads should outweigh any interests that the Federal government has in reducing corporate campaign contributions.
In a separate opinion, Justice Scalia and two other Justices argued that Section 203 (the relevant section of BCRA prohibiting the mention of candidates in corporate sponsored issue ads) is unconstitutional on its face and should be thrown out. However, the end result was that five Justices, a majority of the Court, believe that Section 203 was unconstitutional, either on its face or as applied to these issue ads, and thus, the Court invalidated the FEC decision..
Four other Justices, led by Justice Souter, dissented, believing that Section 203 is constitutional, as had been previously decided by the Court just a few years earlier. The dissenters believed that it is easy for corporations to support or oppose candidates through ads superficially posing as issue ads and to thus evade the clear intent of BCRA to reduce corporate influence in elections.
With this decision, broadcasters can expect that more corporations and labor unions will be running ads that urge voters to write to their Congressman to express outrage about some issue or another (and of course it will be completely coincidental that such ads will only be asking that people write to those Congressmen who happen to be up for reelection. This will no doubt increase advertising inventory in next year's advertising season.