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Court alters ’08 landscape |
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By Alexander Bolton
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Posted: 06/26/07 07:46 PM [ET] |
The Supreme Court yesterday weakened a campaign-finance provision in a ruling that could disadvantage the 2008 campaigns of Sens. Hillary Rodham Clinton (D-N.Y.), Barack Obama (D-Ill.) and John McCain (R-Ariz.): Officeholders now will be subject to corporate-and union-funded ads targeting their positions just before Election Day.
The majority opinion penned by Chief Justice John Roberts ruled that the Bipartisan Campaign Reform Act of 2002 violated the First Amendment rights of Wisconsin Right to Life by preventing the group from running ads before the 2004 election asking voters to urge Wisconsin’s senators to oppose a filibuster of judicial nominees.
The 2002 law, known as McCain-Feingold after its Senate sponsors, banned corporate- and union-funded ads that mentioned a federal candidate within 30 days of a primary and 60 days of a general election.
Yesterday’s 5–4 ruling opens the door for corporations and unions to pour millions of dollars into television and radio ads that focus on an issue before Congress and other government bodies. In the weeks before January’s Iowa caucuses, corporations and unions may fund ads urging voters to contact McCain to express dismay over his immigration policy or Clinton to register opposition to her stance on energy issues. Similarly, all members of Congress may be targeted in the days before their primary and general elections.
Advocacy groups funded with corporate and union dollars would have less freedom to launch similar ads criticizing former Massachusetts Gov. Mitt Romney (Mass.), former New York Mayor Rudy Giuliani (R) or former Sen. John Edwards (D-N.C.) because they do not hold office. Lawyers for such groups would strain to argue that ads mentioning these candidates are intended to advocate for the advance or defeat of a legislative issue, according to election-law experts.
“Many critics believed this part of the law was designed to make it harder to criticize incumbents close to an election,” said Michael Toner, a former member of the Federal Election Commission now at the Bryan Cave law firm. “But the upshot of this is that the Supreme Court’s ruling makes it easier to criticize incumbents than [it is to criticize] other candidates who do not hold federal office, such as Mitt Romney and other candidates who are not in Congress.”
Toner also said the decision opened up a new avenue for spending in the 2008 election.
“A majority of the court has plainly indicated that corporations and unions have a constitutional right to take to the airwaves and discuss legislative issues even in the final weeks before an election,” he said. “The decision could have an impact on the advertising strategies for the 2008 presidential election.”
The court, however, upheld the ban on corporate and union funds paying for ads that expressly advocate for the election or defeat of a candidate. Roberts sharply limited the scope of that prohibition, though, ruling that it should not infringe on the rights of groups to air ads on legislative issues before Congress.
“[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” Roberts wrote.
Liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented.
Roberts’s conservative colleagues, Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, wanted to go further than the chief justice and strike down restrictions on any corporate and union ads aired in the weeks before an election.
“There is a wondrous irony to be found in both the genesis and the consequences of BCRA [Bipartisan Campaign Reform Act,],” Scalia wrote in an opinion that concurred in part with the majority. “In the fact that the institutions it was designed to muzzle — unions and nearly all manner of corporations — for all the ‘corrosive and distorting effects’ of their ‘immense aggregations of wealth,’ were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates.”
In his opinion, Scalia said the difference between political advertising and issue advertising can be unclear, comparing it to “a line in the sand drawn on a windy day.”
Indeed, election experts said that the majority did not draw any crisp lines for determining what corporate and union ads would be allowed immediately before an election. As a result, they predicted, aggressive groups would test legal boundaries and their opponents would flood the FEC with complaints.
“I’m sure a lot of lawyers are going to read it as a signal that there’s a lot more they could do now than prior to the ruling,” a former FEC commissioner now at the Dickstein Shapiro law firm, Scott Thomas, said. “I have a feeling it’s going to lead to a lot of confusion and chaos in the current election cycle before it gets sorted.”
The ruling raises the question of whether groups will seek now legal exemptions from the courts to air various ads targeting officeholders in the days before an election, Thomas said.
Thomas added that federal officeholders such as Clinton and McCain are now more vulnerable to corporate and union advertising than former government officials such as Romney and Edwards.
“It does hurt federal officeholders more because it’s easier to construct an ad that is centered around an upcoming legislative battle in which they’re involved; that can be highlighted more easily than for someone who is not right now in federal office,” Thomas said.
Kenneth Gross, an election expert at Skadden, Arps, Meagher & Flom, however, doubted whether the ruling would substantially increase funding for ads shortly before Election Day. Gross, who represents many corporate clients, said the bulk of corporate resources are spent on ads aired before the pre-election blackout periods, as well as on ground operations, and print and Internet advertising. Opening the door for corporations and unions to advertise during the weeks before an election would prompt strategists merely to review which pots of money they use to fund different activities, he said.
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