Robust political speech and open dialog are fiercely protected by the First Amendment
June 26, 2007
Robust political speech and open dialog are fiercely protected by the First Amendment. At the same time, the U.S. Supreme Court clarified that political ads that support or oppose a candidate but are misleading or silent as to the identity of the speaker or the financial source do not enjoy similar protection (McConnell v. F.E.C.) Nevertheless, yesterday, the two new Justices on the U.S. Supreme Court joined with three of their colleagues in a narrow 5-4 decision that essentially eviscerated Congress" desire to protect the public"s right to know who is funding political speech, turning back the clock to the dark-ages of campaign finance reform.
It has long been a violation of federal law for corporations and labor unions to contribute money from their treasury directly to federal candidates. By requiring corporations and unions to create PACs and disclose the sources of the individual contributions they collect, Congress enacted laws (which the U.S. Supreme Court upheld) that declared corporations and unions should not be allowed to amass and contribute "large war chests" of corporate treasury funds to overshadow contributions to candidates from average citizens.
And, while it was rare that corporations and unions violated this ban on direct contributions outright, they instead found a loophole that allowed them to evade regulation of their ads as long as they avoided using "magic words" like "elect," "support," "vote for," "oppose," etc"in connection with a candidate"s name or picture in their ads. As a result, most campaign ads were produced to appear as "issue" ads (as opposed to express advocacy ads) so that corporations and unions could finance these ads or interest groups could accept these funds without having to disclose the sources of this income. (Remember ads that sounded like this? "Call Senator Smith today and tell him that you oppose logging in downtown Chicago. Senator Smith, bad for trees, bad for Chicago. This ad was paid for by People who Love Trees.")
In 2002 Congress enacted the Bipartisan Campaign Finance Reform Act (BCRA or McCain-Feingold) which included a bright-line test to distinguish the two types of ads. BCRA eliminated the subjective and fuzzy "magic words" test " instead, if an ad ran in the 30 days before a primary election or in the 60 days before a general election and it referred to a candidate for federal office, it was considered an electioneering communication and was subject to regulation. That meant that groups running the ads had to raise money and disclose the sources in accordance with federal election law, thereby eliminating the corporate and union spending loophole.
Yesterday, in Federal Election Commission v. Wisconsin Right to Life, the U.S. Supreme Court threw out that bright-line test and resurrected the express/issue advocacy debate. This ruling now makes it possible for corporations and unions to contribute unlimited, undisclosed and unregulated funds from their general treasuries as long as they"re spent on ads that can be "reasonably construed" to be issue ads. And even if it looks and smells like express advocacy, the Supreme Court has explained that the purpose and context of the ads are irrelevant as long as there are no magic words involved.
This ruling has effectively opened the floodgates to a deluge of unlimited campaign spending from donors with deep pockets. However, the most detrimental aspect of the Supreme Court"s ruling in this case is that voters will be subjected to a barrage of campaign ads without any information to discern who is behind the "issue" ads" messages. And as the 2008 federal elections draw closer, be prepared for groups with innocent sounding names like, "Committee for Good American Values" or "Veterans for Truth and Apple Pie" to tell you why you should or should not some candidates. Just don"t expect them to tell you who they are or who financially supports their "issues."
What can you do in the meantime? Well, we suppose you could always call your respective members of Congress and tell them that political disclosure is an important ISSUE to you.