David Schultz response to the Supreme Court decision in Wisconsin Right to Life (WRTL) v. Federal Election Commission (FEC)
Buckley lives! After reading the WRTL opinion it is clear the Buckley v. Valeo as a precedent is alive and that one of the microsteps that BCRA made to campaign finance regulation is being undone. The WRTL decision in itself is minor in terms of its real impact on campaign ads, but it may portend larger changes on the Roberts Court.
Footnote 52 and the accompanying text in Buckley ushered in the express v. issue advocacy distinction in the campaign finance regime. In arguing that express advocacy included appeals that used what has come to be known as the “magic words”—vote for, elect, support—the Court sought to distinguish electoral speech that would receive First Amendment protection from that which would not, especially when it came to particular speakers such as labor unions or corporations. The Tillman Act and Taft-Hartley barred corporations and unions from directly seeking to influence federal elections. The express v. issue advocacy distinction supposedly maintained the bar on speech directly affecting federal elections by these and other actors, such as non-profits, but preserved their First Amendment rights to comment on matters of public concern.
The express/issue advocacy become the loophole through which a money tank was driven. Unions, corporations, and non-profits all exploited it to influence federal elections by simply running ads that did everything an express advocacy ad did except saying “vote for” or “support.” Instead, these ads, often the nastiest of the negative ads, asked viewers to “Call Senator so-and-so and ask him or her why s/he opposed x.” All of us knew these issue ads were functionally equivalent to express ads, and studies by several scholars proved that.
Section 203 of BCRA tried to fill in the loophole with the new definitions of electioneering communications and the 30/60 day rule. While many saw BCRA as a major reform, I argued at the time of its passage that it was a very minor incremental change. Groups could circumvent it with creative ads, front load ads outside the window, or shift their money to other activities within that time period such as GOTV. Overall, between diversion of money to 527s, creative ads, and a shift to other more creative target marketing in 2004 and 2006, Section 203 had little teeth.
Today’s WRTL decision effectively restores the express/issue advocacy rule to status quo ante prior to BCRA. Effectively footnote 52—to pun today’s decision—is functionally the law of the land again. Look to see a return to some of the pre BCRA ads in some cases, but in others, groups have learned that target marketing and other activities may be more effective than using the new WRTL loophole.
The WRTL decision, which also rests on the notion of corruption found in Buckley, also shows that this latter opinion lives yet another day. However, as I argued in my Buckley v. Valeo, Randall v. Sorrell, and the Future of Campaign Financing on the Roberts Court, 12 Nexus 153 (2007), this opinion is plastic and can be used to support or invalidate campaign finance regulations such as Section 203. The Roberts Court will swear fidelity to Buckley but perhaps use it to hollow out the decision.
Finally, the real import of the WRTL decision is not in terms of it changing CFR rules so much for now but perhaps in showing further incremental reforms are dead, regardless of how small they are.
-David Schultz
Senior Fellow, Institute for Law and Politics
Professor, Hamline University, Graduate School of Management
http://davidschultz.efoliomn2.com
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This morning the United States Supreme Court released its decision in Crawford v. Marion County Election Board (pdf). This case sought to determine whether the State of Indiana's voter identification requirement violated the constitutional rights of voters.
On Monday, April 28, University of South Dakota Law 
