The following commentary is from Paul S. Ryan, FEC Program Director & Associate Legal Counsel, Campaign Legal Center. This piece has been cross-posted here at the Campaign Legal Center blog.

The defining characteristic of the Supreme Court's decision yesterday is "uncertainty." For years we've known that only ads that are the "functional equivalent" of express advocacy can be regulated by BCRA's "electioneering communication" provisions. As a result of the Supreme Court's decision yesterday in WRTL, we now know 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." But what does this mean?

In short, the Court has announced a "no reasonable interpretation" test to determine which ads are and are not subject to BCRA's "electioneering communication" provisions. The problem with this test is that reasonable minds often disagree regarding what the "reasonable interpretation" of an ad is. Indeed, in this case the Court split sharply on the question of whether WRTL's ads are the "functional equivalent" of express advocacy. Chief Justice Roberts and Justice Alito believe that "WRTL's three ads are plainly not the functional equivalent of express advocacy." Justices Souter, Stevens, Ginsburg and Breyer believe that "it is beyond all reasonable debate that the ads are constitutionally subject to regulation under McConnell." And Justices Scalia, Kennedy and Thomas reject the "no reasonable interpretation" test altogether"”precisely because it is so open to interpretation.


For this reason, the exact contours of the new "electioneering communication" exemption are uncertain. It's now up to the Federal Election Commission, as well as state and local administrative agencies charged with enforcing state and local BCRA-like "electioneering communication" provisions, and lower courts throughout the nation to determine whether any given ad "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Chief Justice Roberts listed criteria he took into consideration in determining that WRTL's three ads are not the functional equivalent of express advocacy. First, he notes that the content of WRTL's ads "is consistent with that of a genuine issue ad," meaning the ads:

"¢ focus on a legislative issue;
"¢ take a position on the legislative issue;
"¢ exhort the public to adopt that same position on the issue; and
"¢ urge the public to contact public officials with respect to the matter.

Second, Chief Justice Roberts notes that the content of WRTL's ads "lacks indicia of express advocacy," meaning the ads:

"¢ do not mention an election, candidacy, political party, or challenger; and
"¢ do not take a position on the candidate's character, qualifications, or fitness for office.

Chief Justice Roberts fails to make clear whether all"”or any"”of these criteria must be present in order to conclude that an "ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Consequently, debate is now swirling in the blogosphere and beyond regarding this question. Some have gone so far as to suggest that the Court's WRTL decision means any ad mentioning an issue and avoiding express advocacy is eligible for the new exemption. But, in my view, the Chief Justice's opinion "is susceptible of no reasonable interpretation other than" as requiring an ad to possess all of these criteria in order to qualify for a new as-applied exception.

Take, for example, the Bill Yellowtail ad described in the McConnell decision as a "striking example" of the type of sham issue ad that can constitutionally be regulated:

"Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But "her nose was not broken.' He talks law and order"”but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments"”then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values."

The McConnell Court commented: "The notion that this advertisement was designed purely to discuss the issue of family values strains credulity." (emphasis added) Even Jim Bopp has acknowledged that this Yellowtail ad would not qualify for the new WRTL exemption. So what are the "indicia of express advocacy" possessed by this ad that render it the functional equivalent of express advocacy? The ad does not mention an election, candidacy, or political party"”but it does take a position on a candidate's character, qualifications, and fitness for office.

What if the third-to-final sentence of this "striking example" of a sham issue ad had instead read: "And though he talks about protecting children, Yellowtail failed to make his own child support payments"”call him and tell him to support the Child Support Act of 2007, House Bill 9999, so he can't get away with that again."

Under the new WRTL exception, would the mere inclusion of a reference to a pending legislative matter negate the strong indicia of express advocacy that made this Yellowtail ad the archetype sham issue ad in McConnell"”and, consequently, render the ad susceptible of a reasonable interpretation as something other than an appeal to vote against Bill Yellowtail? Or might one reasonably argue that any "electioneering communication" that takes a position on the candidate's character, qualifications, or fitness for office "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," even if the ad mentions a pending legislative issue?

The notion that Chief Justice Roberts intended to exempt from BCRA the archetype sham issue ad, sub silentio, through the simple expedient of including a reference to a pending piece of legislation itself strains credulity. Such a reading of the Roberts opinion amounts to overturning McConnell"”which the Court expressly did not do. We should take the Chief Justice at his word and read his opinion as fashioning a more narrow exception applicable only those ads sharing the characteristics of the WRTL ads listed above.

The FEC, along with state and local government agencies and courts throughout the nation pondering the meaning of the Court's WRTL decision, should keep in mind that the Court did not overturn McConnell. The Court left standing its decision in McConnell upholding the BCRA definition of "electioneering communication" against facial challenge, and articulated an as-applied exemption based on the facts presented by WRTL. Only where an "electioneering communication" possesses all of the characteristics of WRTL's ads is it entitled to exemption from regulation. Put differently, only ads that are materially indistinguishable from the WRTL ads at issue in this case qualify for the new as-applied exemption. How close is close enough? Only time will tell. This new world of "reasonable" uncertainty might not be pretty, but WRTL asked for it.

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