The following commentary is from Richard Briffault, Professor of Law, Columbia Law School. He participated in the Supreme Court WRTL litigation as an amicus in support of the appellant and intervenor-appellants.

FEC v. WRTL is the anti-McConnell. The majority and plurality opinions — Chief Justice Roberts's opinion speaks for the Court only in the introductory and jurisdictional sections; the sections dealing with the challenge to electioneering communication section of the Bipartisan Campaign Reform Act (BCRA) were joined only by Justice Alito "“ breaks with McConnell at every level "“ in the general approach to campaign finance regulation; in the doctrinal analysis of corporate electioneering communications; and in its specific holding concerning the constitutionality of the electioneering communication restriction.

At the highest level, WRTL rejects the view that campaign finance restrictions can be justified and sustained as democracy-promoting measures that advance government integrity. Where McConnell saw campaign finance jurisprudence as entailing the reconciliation of competing constitutional values "“ democracy and free speech "“ Chief Justice Roberts flatly proclaimed that WRTL is "about political speech" only. So much for Justice Breyer's theory of Active Liberty.

At the doctrinal level, the Court in its recent corporate electioneering cases "“ FEC v. Beaumont as well as McConnell "“ had repeatedly described federal law not as banning corporate election spending but as merely requiring business corporations to participate in federal elections through a political action committee (PAC) funded by the voluntary donations of corporate officers, directors, and shareholders rather than use corporate treasury funds. The PAC requirement restricts the ability of the corporate to use the "aggregations of wealth" amassed from business activities unrelated to the support for the corporation's ideas, while also protecting shareholders who didn't share the political goals of the corporations managers. As Justice Souter's dissent pointed out Wisconsin Right to Life had accepted over $315,000 in corporate donations. But both the WRTL plurality and concurrence rejected this way of thinking about federal election law. Instead, they spoke of BCRA's "ban" on corporate electioneering expenditures.


More centrally, the WRTL plurality and concurring opinions broke with McConnell's determination of how to decide whether an ad is election-related. This has been a problem for the Court since Buckley v. Valeo. In Buckley, the Court focused on the content of the message, holding an ad would be treated as electioneering only if it included the "magic words" of express advocacy. By McConnell, a quarter-century later, both Congress and the Court had concluded that the magic words test was easily evaded and utterly failed to distinguish between election-related and non-election-related speech. In BCRA, Congress determined that some attention to context "“ the timing of the ad relative to the election, the medium, and the targeted audience "“ had to be added to content in deciding whether or not an ad is electioneering, and the Court in McConnell agreed. WRTL reverses that analysis. According to Chief Justice Roberts, "contextual factors . . . should seldom play a significant role in the inquiry." We are back to the "magic words" and their "functional equivalents" "“ with the "equivalence" determination to be made based on ad content. This ignores the track record of the last three decades, the judgment of Congress, and political reality.

Finally, at the level of holding, the Court essentially "“ albeit only unofficially "“ overturns McConnell's judgment upholding BCRA's definition of "electioneering communication" and substitutes BCRA's "backup" definition "“ the definition that McConnell declined to reach. That is the only possible interpretation of a decision that creates an as-applied exception whenever an ad "may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate." This is no mere as-applied exception but an effective gutting of the law. Indeed, Chief Justice Roberts's language is the "functional equivalent" of the BCRA backup definition's requirement that an ad be "suggestive of no other plausible meaning other than as an exhortation to vote for or against the federal candidate." The seven concurring and dissenting justices agree that the backup definition is now, de facto, the law. The constitutional definition of election-relatedness has been moved back towards where it stood before McConnell, with a large dollop of vagueness thrown in,

Although the Roberts opinion tries to hold together McConnell's rejection of a facial challenge to the electioneering communication restriction with the creation of a sweeping as-applied exception, the exception will surely devour the rule.

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