(Please note: Professor Foley served as a consultant to the attorneys representing the congressional sponsors of the McCain-Feingold legislation as Intervenor-Defendants in McConnell v. FEC. He is not involved in Wisconsin Right to Life, Inc. v. FEC.)
This new case, Wisconsin Right to Life, Inc. v. Federal Election Commission, might cause the Supreme Court to overturn its own recent decision, McConnell v. Federal Election Commission (2003), which upheld the authority of Congress to prohibit the use of corporate and union money to broadcast election campaign messages.
The McConnell decision turned on the fact that Congress, in adopting this prohibition, had left open the option for individuals associated with a corporation or union to give their personal funds to a political action committee, or PAC, controlled by the corporation or union, and this corporate or union PAC remained free to spend as much of its funds as it wished to broadcast messages supporting or opposing candidates for public office. Thus, the congressional prohibition on the use of corporate or union funds amounted to a source-of-funding restriction: only the general-treasury funds of the corporation or union were off-limits; through its separate PAC account, the corporation or union could still convey its electoral messages.
Even so, this decision received only a bare majority of five votes in the Court, including Justice O'Connor's. By the time Wisconsin Right to Life is argued before the Court, Justice O'Connor may have been replaced by Harriet Miers, whose views on campaign finance and the First Amendment (as on so many constitutional issues) are unknown.
Justices Scalia, Kennedy, and Thomas vehemently dissented from this McConnell decision. So too did Chief Justice Rehnquist, but he has since been replaced by Chief Justice Roberts, whose views about campaign finance and the First Amendment are also largely unknown.
The question arises, therefore, whether the two new Justices will join Scalia, Kennedy, and Thomas in voting to overrule McConnell. These latter three were prepared to overrule precedent in McConnell itself.
In Austin v. Michigan Chamber of Commerce (1990), the Court had ruled that the First Amendment did not give corporations the right to use general-treasury funds for a narrow category of campaign messages that expressly advocate for or against a candidate's election (like "Vote for Smith," "Defeat Jones," or "Re-elect Adams"). McConnell involved the congressional extension of its source-of-funding restriction beyond this narrow category of "express advocacy" to any message that identifies a candidate and is broadcast to the electorate within 60 days of a general election (or 30 days of a primary).
The dispute among the attorneys in McConnell was whether Congress could go beyond the narrow category of "express advocacy" that had been approved in Austin. But the Justices who dissented in McConnell never accepted the Austin premise. Justice Kennedy, writing for himself and his colleagues, characterized Austin as "an indefensible departure from our tradition of free and robust debate." It is difficult to believe that the Justices who were prepared to overrule Austin in McConnell would not overrule both Austin and McConnell in Wisconsin Right to Life if given the opportunity. But will Chief Justice Roberts and, if confirmed, Justice Miers give them that opportunity?
Overruling Austin and McConnell is not the only potentially significant outcome of Wisconsin Right to Life. The Court could also limit the scope of the source-of-funding restriction by ruling that it does not apply to messages that, although identifying a candidate, do not appear to advocate for or against the candidate's election, but instead merely mention the candidate in the context of advocating a position on a political issue.
The three specific messages in Wisconsin Right to Life , two 60-second radio ads and one 30-second TV ad, are of this type. They each mention Senator Russ Feingold, who happened to be running for reelection at the time they were scheduled for broadcasting. But they equally mention Senator Herbert Kohl, Wisconsin 's other incumbent Senator, who was not running for reelection at the time. Each ad urges its audience to "contact Senators Feingold and Kohl and tell them to oppose the filibuster" of President Bush's judicial nominees. The sole subject of each ad is the judicial filibuster. None contains any reference to the then-upcoming election in which Senator Feingold was a candidate. Indeed, none contains any other reference to Senator Feingold except the single sentence urging the audience to contact him and Senator Kohl equally about the filibuster.
As appealing as it would be to exempt this kind of message from the source-of-funding restriction, the difficulty of doing so is how to delineate precisely between the exempt and covered categories. The old "express advocacy" test proved unworkably narrow, as all nine Justices recognized in McConnell. The Court conceivably could develop an "apparent electoral advocacy" test, which would permit the congressional source-of-funding restriction to operate if but only if an ad within its specific timeframe appears to advocate for or against the identified candidate's election. But the subjectivity of that test would strongly counsel against it.
It seems unlikely that the four remaining Justices of the McConnell majority - Stevens, Souter, Ginsburg, and Breyer - would vote to limit the source-of-funding restriction in this way. With Justices Kennedy, Scalia, and Thomas still insisting on overruling Austin as well as McConnell, where do the two new Justices position themselves? It would seem either that they vote to uphold the source-of-funding restriction in its entirety, even as applied to such apparently non-electoral messages as the ones in Wisconsin Right to Life, on the ground that attempting carve out an exception for such messages would cause more harm than good. Or they can join the three remaining McConnell dissenters in voting to overrule both McConnell and Austin.
Assuming that the two new Justices are philosophically sympathetic with the First Amendment views espoused by the three McConnell dissenters, Wisconsin Right to Life will prove an early test of how willing they are to stick with precedent which they disfavor.