Does the First Amendment Protect Political Speech?

The Supreme Court heard its last oral arguments of the 2006-07 term on Wednesday morning, April 25, in a case that could have substantial ramifications for freedom of speech and election law.

In the combined cases of Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, the justices considered whether the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as “McCain-Feingold”) permits the government to prohibit the broadcast of “issue ads” paid for by groups of citizens, aimed at influencing legislation, during the 60 days prior to a federal election, if those ads mention the name of a public official who is also a candidate for elective office.

Just a few hours after the Supreme Court hearing recessed, the Cato Institute sponsored a briefing that featured four distinguished legal scholars who had both participated in and observed the argument: James Bopp, Jr., the attorney who argued the case on behalf of Wisconsin Right to Life (WRTL); Kathleen M. Sullivan, the former dean of Stanford University Law School, who had drafted a friend-of-the-court brief supporting WRTL; Rick Hasen, a professor at Loyola Law School in Los Angeles (who has already blogged about the oral arguments here); and Martin Lederman, a visiting professor at Georgetown University Law Center here in Washington. Hasen and Lederman had jointly authored a brief supporting the Federal Election Commission’s position in the case. Cato's Roger Pilon moderated the discussion.

In assessing the oral arguments, James Bopp began his remarks at Cato by saying that the outcome “looks close.” He said that Justices David Souter and Steven Breyer were “lively” and “almost hostile” in their questioning of him, as an advocate for WRTL. He said of the final vote that “it’s plausible that it could be 6-3, but more likely to be 5-4.”

The real question, he said, is whether the eventual ruling will be “broader or narrower.” For Bopp, the “heart of the argument is that these were genuine issue ads,” rather than ads aimed at changing the outcome of an election. The problem, he said, is that the government has never offered a test that can be used to determine whether something is a “genuine issue ad” rather than one designed to affect an election.

He suggested a multipart test that would define a “genuine issue ad,” which would include certain features: (1) identifying a legislative issue; (2) taking a position on that issue; (3) urging listeners to contact elected officials about the issue; and (4) having no link between the ad’s text and the election (for instance, having no content referring to a candidate’s character or fitness for public office).

Some of these types of ads, he continued, do state the position of public officials and do praise or criticize them for those positions.

Unfortunately, Bopp complained, the Federal Election Commission (FEC) “seems to have adopted the position that there are no genuine issue ads.” What the FEC now claims, he said, is that the “government has the authority to prohibit any ad that might influence an election.”

This position is foreboding, according to Bopp, because “if the government can seize that power, it means the whole purpose of the First Amendment has been destroyed.”

(During the question-and-answer period later in the forum, Bopp said that those who support the BCRA in its current form “want to prohibit anything that might have a remote or speculative effect on elections.” This is wrong, he said, because “things that are unambiguously related to elections can be regulated” without burdening free speech.)

He pointed to a brief filed on behalf of Senator John McCain which “reveals that the purpose of the electioneering communications black-out period is to prohibit criticism of public officials.” Yet, he said, “this is exactly what the First Amendment is intended to protect.” Consequently, “there is a lot at stake in this case.”

Rick Hasen took the lectern to point out that for a hundred years, corporations and unions have been banned from spending on electioneering from their general treasury funds. They are required to form special political action committees (PACs) for that purpose.

Hasen argued that the BCRA does not “prohibit political speech” but rather requires that money spent on such speech should be kept in segregated funds, what he called the “separate fund requirement.” In 2003, the Supreme Court upheld this requirement (and the BCRA’s extensions of it) in the case of McConnell v. FEC.

Therefore, Hasen argued, what is at issue in this case is, what is the exception to the requirement.

There has been a change in the make-up of the Court since the McConnell decision. Justice Sandra Day O’Connor, who had voted in the majority in that case (and was widely considered to be the “swing vote” in that case, as in others), has been replaced by Justice Samuel Alito. Chief Justice William Rehnquist, who dissented, has been replaced by John Roberts.

To Hasen, the key vote will belong to Justice Anthony Kennedy. He said that in the oral arguments, Justice Antonin Scalia and Chief Justice Roberts were aggressive in their questioning. But, he added, Justice David Souter “has never been so aggressive as he was against Jim Bopp,” who was arguing for WRTL.

The question, for Hasen, is “where do Kennedy, Roberts, and Alito stand?”

In terms of policy, Hasen said, “certain as-applied challenges [to BCRA] should be allowed,” for instance, 501(c)(3) non-profit groups, which are not permitted to form PACs, should be allowed to issue such a challenge.

Hasen thought that a clue to the ultimate outcome could be found in a question that Justice Kennedy asked about the parallel to the fighting words doctrine, saying that “context matters.” (It was noted that the district court, which ruled in favor of WRTL, refused to consider the issue of “context.”) Given this and other questions posed by the justices, Hasen said, “it looks like it will be a context-based test” and the case will be sent back to the district court, which will make a decision based on the test devised by the Supreme Court. He did say, with tongue somewhat in cheek, that this could mean that this case will make it back to the Supreme Court and that Jim Bopp might find himself arguing before the court once again after the 2008 elections. While that may be true, he added, once the test is defined and “once the rules are clear, we won’t have multiyear litigation” such as that represented by FEC v. Wisconsin Right to Life.

For her part, Kathleen Sullivan – who also wrote an amicus curiae brief, on behalf of the Family Research Council and other groups – said the question at hand is “how do you give enough breathing room to voluntary associations” so that they can address both abstract topics and specific legislative issues?

Sullivan noted that Congress meets year-round and “escalates its legislative agenda” in the months before an election. Moreover, because of primary elections that occur on different dates in various states, we are not talking about a simple 60-day black-out period, but a period that could be much longer. Justice Scalia, she said, “wondered if it could be a 200-day black-out.” This, she said, “amounts to a severe restriction on speech.” The ban “is too broad for genuine grassroots advocacy” because the 60-day window (which is expandable) is too long and because the “separate fund requirement” is not just a regulatory restriction but essentially disqualifies groups simply because they might accept contributions from corporations.


The effect of all this is “strangling the little guy” who forms a group to advance his positions on legislative issues. “Everybody is foreclosed” even if they take just a “little corporate money,” she said.

Sullivan listed the reasons why this rule adversely affects “the little guy” but not people with large amounts of money and resources available to them: (1) 501(c)(3) groups cannot form PACs; (2) even if the group is not a 501(c)(3), the “little guy can’t form a PAC” because it takes a team of lawyers and accountants to do so; and (3) some groups may not want to form a PAC in the first place because they do not see themselves as “political” in the sense of “election-oriented” but rather simply interested in a particular issue.

The consequence of this is that “we have a world that is topsy-turvy” in which “rich guys can form PACs but the small grassroots advocacy group” is unable to respond to issues it thinks is important if those issues come up in Congress during the period before an election.

Suggesting a difference between herself and previous speakers, Sullivan said that the outcome of this case “depends more on Alito than on Kennedy.” She said that in oral arguments, Breyer and Souter expressed the view that it was important to be sure that non-profits do not take up the slack from for-profits – that is, that they are not conduits for corporate money.

Sullivan cautioned that we should not “discount Breyer,” noting that he had voted to strike down a Vermont state campaign finance law.

Scalia, Clarence Thomas, and Kennedy, Sullivan said, “are solidly in favor of showing that the BCRA has limits,” even though Kennedy “threw a couple of lifelines to the government” in his line of questioning.

Thus, she said, it “comes down to Roberts and Alito,” whose questioning “looked favorable to an as-applied challenge.” Alito, she continued, “looked like he was looking for a way to say there is breathing room for grassroots lobbying.”

Sullivan did say, however, that “there is another way the court could go: It could prohibit certain speakers rather than [categories of] speech.” She suggested that the Court could reinstate the Snowe-Jeffords amendment to the BCRA, which carved out an exception for non-profits.

Concluding her remarks, Sullivan said: “I’m cautiously optimistic.”

The fourth speaker was Martin Lederman, who said he wished to dispel three myths about the BCRA and the case before the court.

First, he said, in answer to the question in the title of today’s Cato forum, the First Amendment does protect free speech and that “electoral speech is at the heart of the First Amendment.”

Second, there is a myth that it is difficult to determine if these ads are genuine issue ads. He replied that they are “both intended to influence issues and to influence elections,” because the advocacy group wants to “put pressure on elected officials.”

Third, he said the statute does not prohibit issue ads. “It is entirely more modest” than that, he said. All it does is to require “business corporations to pay for those ads through segregated funds,” as Rick Hasen had stated earlier.

The case, he said, really “comes down to a rule that treats corporations separately” from other types of groups.

Lederman listed six different ways the statute would not apply (and therefore would not limit speech): (1) if WRTL ran its ad on the Internet; (2) if it ran the ad outside the 60-day window; (3) if it did not mention a candidate’s name (in this case, Russ Feingold); (4) if WRTL were not incorporated; (5) if it did not take corporate contributions; and (6) if WRTL had used a separate, segregated fund to pay for the ads.

What is at the heart of this case, Lederman said, is corporate speech. He cited former Chief Justice Rehnquist’s opinion that corporations need to be treated differently than individuals, which reflects a long-standing legal tradition based on certain advantages (such as limited liability) granted by the state to corporations but that are not enjoyed by individuals or unincorporated associations.

Lederman said that he agrees with Kathleen Sullivan “that speaker-based exceptions for certain organizations are a better way for the court to go.” The question he asked is whether the “four dissenters in McConnell can pick up Alito’s vote.”

If they can, the decision will be announced toward the end of the Supreme Court’s current term, close to the Fourth of July.

(Some of the various briefs filed on both sides in this case can be found through this link at Election Law Blog. A brief from the Center for Competitive Politics that was joined by the Cato Institute and other libertarian organizations can be found here.)