Wisconsin Right to Life v. FEC Lawsuit of 2007
The Wisconsin Right to Life v. Federal Election Commission (FEC) lawsuit of 2007 emerged as a significant challenge to the campaign finance restrictions imposed by the Bipartisan Campaign Reform Act (BCRA) of 2002, particularly concerning the regulation of “electioneering communications.”
BCRA introduced provisions that prohibited corporations and labor unions from using their general treasury funds to finance “electioneering communications.” These were defined as broadcast ads that mentioned a federal candidate within 30 days of a primary or 60 days of a general election. The intent was to prevent indirect influence on elections through issue advocacy ads that effectively functioned as campaign ads.
Wisconsin Right to Life (WRTL) is a nonprofit, nonpartisan, pro-life advocacy organization. In 2004, during the election season, WRTL planned to run a series of broadcast advertisements urging listeners to contact their Senators to oppose filibusters of judicial nominees. At that time, one of Wisconsin’s Senators, Russ Feingold, was running for re-election. Under BCRA’s provisions, WRTL’s proposed ads fell within the definition of electioneering communications because they mentioned a federal candidate (Senator Feingold) within the restricted time frame before the election. Consequently, the Federal Election Commission (FEC) prohibited WRTL from airing these ads, asserting that they violated the act’s restrictions on corporate-funded broadcasts.
WRTL contended that BCRA’s prohibition on their advertisements was unconstitutional as applied to their specific case. They argued that their ads were genuine issue advocacy, not express electioneering, and thus should be protected under the First Amendment. WRTL sought an injunction to allow the airing of their ads, leading to a legal battle that questioned the breadth and application of BCRA’s restrictions.
The case eventually reached the Supreme Court, which had to determine whether BCRA’s restrictions on electioneering communications were unconstitutional when applied to genuine issue advocacy ads like those proposed by WRTL. The Court’s decision would have significant implications for the regulation of political speech and the scope of campaign finance laws.
On June 25, 2007, the Supreme Court ruled that the restrictions on electioneering communications under BCRA could not be applied to ads that are genuine issue advocacy. Ads that do not explicitly endorse or oppose a candidate but focus on broader political issues are now protected under the First Amendment. This created a significant loophole, allowing organizations to run issue ads close to an election as long as they did not include “express advocacy.”
The ruling allowed corporations, nonprofit, and mega-donors organizations to use their general treasury funds for certain types of political advertising, provided they framed their messages as issue advocacy. This set the stage for increased spending on political ads that indirectly influence elections. By permitting ads that mention candidates but avoid explicit endorsements, the decision made it easier for organizations to influence elections while claiming to engage in issue advocacy. The result was an explosion of political spending by corporations and the donor class, including 501(c)(4) organizations and Super PACs, which could now engage in issue advocacy with fewer restrictions. The ruling increased the flow of dark money spending that are not required to disclose their donors.
The dissenting opinion was authored by Justice David Souter and joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer. The dissenting justices warned that the decision weakened the BCRA’s effort to limit the corrupting influence of money in politics. Justice Souter argued that allowing corporations and unions to fund ads mentioning candidates shortly before elections undermined the intent of Congress to regulate such spending. Souter noted that the issue ads ostensibly functioned as campaign ads.
Justice Souter contended that the Court had overstepped its role by creating new exceptions to campaign finance laws, undermining Congress’s efforts to address the problem of corruption and its appearance in elections. The dissent emphasized the importance of campaign finance restrictions in combating both actual corruption and the public perception of corruption. By striking down the application of BCRA to WRTL’s ads, the majority, according to Souter, opened the door for corporations and unions to influence elections more freely, eroding public confidence in the democratic process.
Souter argued that Congress, not the courts, was better positioned to determine the necessity and scope of campaign finance regulations. He maintained that BCRA was carefully crafted to balance free speech rights with the need to address the dangers of excessive corporate and union influence in elections.