WRTL: A Constitutional Sea Change

The following post is from Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, and Co-Director, NYU Center on Law and Security.

The 5-4 decision in WRTL is a blockbuster. Effectively, though silently, it overrules a central element in the Court’s most recent prior confrontation with the campaign-finance problem at issue, the 5-4 decision in McConnell, issued only four years ago when Justice O’Connor (and Chief Justice Rehnquist) were on the Court. There is no doubt today’s decision reflects a constitutional sea change that is likely to have dramatic effects on upcoming elections. Some will celebrate that change, others will bemoan it, but that the change is dramatic cannot be doubted.

WRTL deals with perhaps the hardest issue in the regulation of campaign financing: how regulation and constitutional law should distinguish between election ads, which seek to affect election outcomes, and issue ads, which seek to influence public opinion about issues of the day. A distinction of this sort is both essential to the constitutionality of campaign-finance regulation, on virtually all views, but also inherently artificial and difficult to put into practice. Public debate about issues and candidates is inherently intertwined, particularly as election day looms. Thus, any legal distinction between ads influencing election outcomes and ads influencing public debate is necessarily elusive. At the same time, if Congress cannot regulate something called “election ads” at all, then it becomes child’s play for actors who are barred from contributing money directly to candidates to turn around and instead run election ads. WRTL addressed parts of the McCain-Feingold law, also addressed in McConnell, that banned and criminalized corporate and union “election ads.” Corporations, it must be noted, include non-profit corporations, such as the AFL-CIO, Wisconsin Right to Life, the ACLU, the NRA, and others. For those concerned that direct corporate or union contributions to candidates risk “corruption,” that same risk might be thought to be present when those actors instead spend large amounts to affect the outcome of elections.

Congress concluded in McCain-Feingold that exactly this had happened. But it recognized the difficulty of the regulatory problem and came up with two ways to define the line between election ads and issue ads: a broader way, which covered many more ads, and a much narrower way. Recognizing the constitutional sensitivity of the issues, Congress legislated the broad definition into law, but noted that if this definition were held unconstitutional, the narrower definition would go into effect.

McConnell upheld the broader definition. That broader definition dealt with the difficult line-drawing problems by adopting a broad, bright-line rule: any broadcast ad that mentioned a clearly identified candidate for federal office withint 60 days before a general election was deemed to be an election ad – hence banned to corporations and unions. Given the difficulty of the constitutional issues, many academic experts in this area were surprised that the Court seemed to reach this result rather easily. Nonetheless, that was thought to be that: the Court had settled this issue by permitting Congress to use a bright-line, broad rule to define what constitutes a banned “election ad.”

All of that is not just unsettled by today’s decision. In effect, the Court reaches precisely the opposite result. The effect of today’s decision is to deny Congress the power to regulate this area through the use of broad, bright-line rules. The holding today is that the First Amendment precludes Congress from regulating any ad unless the government can prove that “the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This takes the permissible regulation of campaign financing very close to back to what it was before the McCain-Feingold law. At the least, this means courts and the FEC will have to judge ads case by case; it means that a vastly smaller class of ads can validly be banned; it means Congress’ efforts to employ a simple, bright-line rule are effectively overruled; it means, in other words, that the Court’s acceptance of this broader definition, a few years back, has now been supplanted by the Court’s holding that the Constitution, in effect, permits only the narrow regulatory approach in Congress’ fallback position.

In my view, the most telling line in CJ Roberts’ opinion is: “Enough is enough.” This line is so telling because the whole thrust of more recent regulatory efforts has been to find that one after another way of spending on elections was a “circumvention” of legitimate and constitutional efforts of Congress to ban direct contributions from corporations and unions to candidates. By saying enough is enough, the Court is effectively calling a halt to this justification for an ever more expansive regulatory regime.

Today’s decision also illustrates how much the Court can change the law without directly overruling precedent. Three Justices would, in fact, explicitly overrule the recent McConnell decision on today’s issues; Justice Alito, a fourth, certainly signals receptivity to that possibility. So a formal overruling of McConnell can easily be imagined. But Chief Justice Roberts is at pains to cast his opinion as not requiring any resolution of that formal question. At the end of the day, I believe that question is, practically speaking, beside the point. By holding that the Constitution permits regulation only of corporate/union ads that the government can show are capable of “no reasonable interpretation” other than as an appeal to vote for or against a specific candidate, the Court’s decision accomplishes much the same result as would a formal overruling. Indeed, the analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes. For First Amendment libertarians, this outcome will be celebrated. For those who fear “undue influence” of corporations and/or unions over federal officeholders, this outcome will be a major blow.