Media for Federal Election Commission v. Wisconsin Right to Life, Inc.Audio Transcription for Oral Argument - April 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.
Audio Transcription for Opinion Announcement - June 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.
John G. Roberts, Jr.:
At best the appellants have shown that the distinction between discussion of issues on the one hand and candidates on the other may not be that clear in practice but under our test that is not enough to establish that the ads can reasonably be viewed as advocating or opposing a candidate in a federal election.
Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.
Where the First Amendment is implicated the tie goes to the speaker not to censor.
So these ads cannot be suppressed because they are light express election advocacy.
We also reject other asserted grounds for censoring the speech it is suggested that the regulation is supported by the interest in preventing corruption and the appearance of corruption in election campaigns, and the interest in addressing the distorting effects of corporate wealth.
Neither interest however has been extend into ads like WRTL’s that are not the functional equivalent of express election advocacy.
We conclude that extending them this extra strap would be to stretch that too far and would call into question our well established holding that the corporate identity of a speaker does not strip corporations of all free speech rights because WRTL’s ads are not express election advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL’s speech, BCRA §203 is unconstitutional as applied to WRTL’s ads.
Justice Alito and I do not believe these cases present an appropriate occasion to revisit McConnell’s holding that express candidate advocacy or its functional equivalent maybe regulated.
But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban the question that us before the court, we give the benefit of the doubt to speech not censorship.
Justice Alito has also filed a concurring opinion.
Justice Scalia has filed an opinion concurring in part and concurring in the judgment in which Justice Kennedy and Thomas have joined.
In Justice Scalia’s view the test for as applied challenges under Section 203, I have just articulated another similar test are impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights at issue.
Justice Scalia believes this conclusion compelled by our decision in Buckley versus Valeo which rejected advocacy of the election or defeat of a candidate as a statutory test because it was too vague.
At the same time he reasons any clear rule that would protect all genuine issue ads would cover such a substantial number of ads prohibited by Section 203 that Section 203 would be rendered substantial overbroad.
Thus, our decision in McConnell which presuppose the availability of as applied challenges was mistaken in its approval of Section 203.
Justice Scalia would therefore overrule that part of the court’s decision in McConnell upholding Section 203(a) of BCRA.
While he agrees with the principle opinion of that the court has jurisdiction he otherwise concurs only in judgment.
Justice Souter has filed a dissenting opinion which Justices Stevens, Ginsburg and Breyer have joined.
David H. Souter:
As the Chief Justice said less than four years ago on a case called McConnell against Federal Election Commission this court reviewed to claim that Section 203 of the Bipartisan Campaign Reform Act of 2002 commonly called McCain–Feingold was unconstitutional on its face.
We rejected that challenge and held that provision facially constitutional.
That same provision is challenged today as applied specifically is applied to particular broadcast advertisements run by the Appellee Corporation Wisconsin Right to Life incorporated.
Today a majority of the court holds that Section 203 cannot be applied constitutionally to regulate the corporation’s advertisements.
The courts reasoning is directly at odds with the reasoning in McConnell and a portion of McConnell that upheld Section 203 on its face is therefore effectively overruled.
Justice Stevens, Justice Ginsberg, Justice Breyer and I respectfully dissent.
In conjunction with the other provisions of the Bipartisan Campaign Reform Act of 2002 Section 203 limits a corporation or union from broadcasting a political advertisement within 60-days on election or 30-days of primary.
When the ad refers to a clearly identified candidate for federal office and is targeted to the candidate’s electoral district.
The corporation of union may maintain a separate political action committee that can run such an ad but the corporation or union cannot do so directly by using its general funds.
Section 203 was enacted to deal with the problem that had been brewing for over a century.
In the year 1907 corporations were forbidden to make contributions from corporate funds directly to federal candidates in the 1940s the same limitation was imposed on unions.
In each case the reason was obvious corporations and unions can assemble a lot of money, money given to a political candidates has string attached, people understand this and the consequence understanding a cynicism about the democratic process.