The Supreme Court has ruled, by a 5-4 vote, in favor of Wisconsin Right to Life, which had been embroiled in long struggle with the Federal Election Commission over ads the anti-abortion group was prevented from broadcasting. The spots would have asked voters to urge Sens. Russ Feingold and Herb Kohl not to filibuster Bush’s judicial nominees. You can read the full opinion here
Kennedy, Thomas, and Scalia would have scuppered the electioneering speech provision of BCRA entirely, while Alito and Roberts (who one might expect to have taken a certain pleasure in the ruling) focused more narrowly on the “as applied” challenge, concluding that the WRTL spots were genuine issue ads, rather than “express advocacy [for a candidate's election or defeat] or its functional equivalent.” While my sympathies are with the outright-repudiation contingent, it’s not clear how much practical difference this will make. The opinion limits the ban on political advertising near election time to commercials which cannot be reasonably interpreted as anything other than an injunction to vote for or against a candidate. If this doesn’t quite resurrect the old “magic words” test, it comes close.
Still, a look at the dissent—which begins with a lengthy meditation on the pernicious influence of money in politics—makes clear why this is still suboptimal. Consider this passage from Justice Souter’s dissent:
Senator Feingold’s support of the filibusters was a prominent issue. His position was well known, and his Republican opponents, who vocally opposed the filibusters, made the issue a major talking point in their campaigns against him.
In sum, any Wisconsin voter who paid attention would have known that Democratic Senator Feingold supported filibusters against Republican presidential judicial nominees, that the propriety of the filibusters was a major issue in the senatorial campaign, and that WRTL along with the Senator’s Republican challengers opposed his reelection because of his position on filibusters. Any alert voters who heard or saw WRTL’s ads would have understood that WRTL was telling them that the Senator’s position on the filibusters should be grounds to vote against him.
Of course, one has to wonder: If all of this was so very well known, why be worried about the effect of ads at all? On Souter’s telling, Wisconsin voters all knew that Feingold favored a filibuster of judicial nominees, and that this was being posited as a reason to vote against him. Supposing that were so, the ads should have been an utter waste of money. One might well counter that many Wisconsin voters were not quite as “alert” followers of state politics as Souter supposes. Alternatively, one might point out that being reminded of an issue, or having its importance dramatized, can influence citizens’ actions even when they were already, strictly speaking “aware” of the information conveyed. But each of these considerations weighs in favor of the view that the spots in question could be read as issue ads also.
Souter’s emphasis on “context” should also be disturbing insofar as it makes the line between protected and proscribed speech turn on other speech. That is, whether an ad calling attention to Feingold’s position on filibustering judicial appointees counts as “electioneering” seems to depend on what various other Republican candidates and pundits were saying about the issue. The ad is also held to be suspect because it directs viewers to a Web site containing further, more strongly worded, criticism of Feingold. On this theory, then, advocacy groups must not just be careful about the content of the commercials they air, but about what they might later say on any sites referenced in the commercials. English majors and media semioticians must be cursing all the opportunities for expert witness consulting fees this decision has cost them.