A Loophole Reopens

The Supreme Court jettisons sense on campaign 'issue ads.'

THREE TERMS and a different Supreme Court ago, a five-justice majority sensibly upheld a provision of the McCain-Feingold campaign finance law designed to stem the flood of corporate- and labor-funded campaign commercials masquerading as "issue ads." The majority found "little difference" between "an ad that urged viewers to 'vote against Jane Doe' and one that condemned Jane Doe's record on a particular issue before exhorting viewers to 'call Jane Doe and tell her what you think.' " As the court explained, "although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election."

Yesterday, a changed court, without acknowledging that it was doing so, jettisoned that common-sense approach. Chief Justice John G. Roberts Jr., in an opinion joined by Justice Samuel A. Alito Jr., said such ads would be considered "the functional equivalent of express advocacy," and therefore disallowed, "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" [emphasis added]. Three other justices who had dissented in the earlier case -- Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- said they would do explicitly what they said their colleagues had done silently and overrule the previous decision.

The ruling involved ads run in 2004 by Wisconsin Right to Life, which took corporate donations and was seeking to defeat Sen. Russell Feingold (D-Wis.). The ads criticized an unnamed "group of senators" for filibustering President Bush's judicial nominees; they urged viewers to call Sens. Feingold and Herb Kohl (D-Wis.), who was not up for reelection, "and tell them to oppose the filibuster." On its face, this looks like inoffensive speech on an issue of public importance, not the barely disguised campaign ads that Congress was trying to control. As Justice Roberts pointed out, the ads "focus[ed] on a legislative issue"; made no mention of the election; and did not "take a position on a candidate's character, qualifications, or fitness for office." If the impact of the court's ruling were only to permit such anodyne issue-focused ads as these, that would be fine.

The difficulty is that the new Roberts standard risks permitting a flood of corporate- and labor-sponsored advertising close to elections. There are some ads -- the Swift boat spots against John F. Kerry in 2004, for example -- that could still be prohibited under the Roberts rule. But it is difficult to see how the more common kind of "issue ads" that the court found so troublesome in its earlier ruling could now permissibly be stopped.

Political speech is at the core of the First Amendment; restrictions on such speech must be carefully crafted. The court, however, has long made clear that Congress has the power to prevent corporations and labor unions from seeking to influence federal elections; such entities can't make campaign contributions or run election ads. Yesterday's ruling reopens a dangerous loophole.