The following commentary is by Scott L. Nelson, Public Citizen Litigation Group. Mr. Nelson assisted in the representation of the congressional intervenors in WRTL.

With the perspective afforded by the passage of a whole week since the Court's decision in WRTL, I'm offering my thoughts on the burning question: What is left of McConnell? The answer is twofold "” "a lot," and "a little."

As for the "a lot," let's not forget that McConnell addressed important issues aside from the constitutionality of the limits on "electioneering communications," most significantly the question of BCRA's restrictions on soft money contributions to political parties. Nothing in the reasoning of Chief Justice Roberts' opinion in WRTL casts doubt on the McConnell majority's holding that the soft money contribution provisions of BCRA are constitutional. And Roberts' joinder in Justice Breyer's opinion last Term in Randall v. Sorrell reflected at least a general acceptance of the Buckley-McConnell framework for addressing contribution limits.

One can of course speculate, in light of Roberts' lack of enthusiasm (to say the least) for campaign finance legislation, that he might have voted the other way on the contribution issues in McConnell. But that's a very different matter from whether he would overrule it. And on the contribution side, there appear to be fewer opportunities to limit BCRA's reach by entertaining as-applied challenges; thus, what Justice Scalia labeled the "faux judicial restraint" approach of effectively overruling a decision without acknowledging what you're doing may not be readily available. I don't see much reason in WRTL to predict the imminent demise of McConnell's soft money holding.

What's left of McConnell's electioneering communications holding is another story. The effect of the Court's ruling is the same as if the McConnell Court had struck down the electioneering communications provisions on their face but sustained the statute's "backup definition" of electioneering communications, which BCRA provided would come into play if the primary definition were struck down. Under the backup definition, as under Chief Justice Roberts' controlling opinion, the prohibition on use of corporate and union treasury funds to finance electioneering communications could be applied only to ads that have no "plausible" (BCRA) or "reasonable" (Roberts) meaning other than advocacy of a vote for or against a candidate. Thus, wholly aside from Roberts' rejection of much of the McConnell majority's reasoning, the result of his opinion is, as Justice Souter pointed out in dissent, identical to what would have occurred if McConnell had held the electioneering communications provision facially unconstitutional rather than upholding it.

That doesn't mean, however, that there is nothing left of McConnell's electioneering communications holding. If McConnell had struck down BCRA's primary definition of electioneering communications, it still would have had to address the constitutionality of the backup definition, which at that time was itself far from an open-and-shut question. The reason is that under the backup definition, communications that lacked the "magic words" of express advocacy ("vote for," "vote against," "Smith for Congress," etc.) could be regulated, and the law's challengers in McConnell (like Justice Scalia's concurrence in WRTL) mounted a vociferous argument that Buckley v. Valeo and its progeny had drawn a constitutional line prohibiting restrictions on corporate expenditures for ads that lack the magic words.

McConnell, of course, rejected that argument, and so does Roberts' opinion in WRTL. The Roberts opinion not only expressly reaffirms (in the face of Justice Scalia's intense disagreement) McConnell's holding that the "magic words" standard is not a constitutional one, but it also formulates a test for as-applied challenges that specifically permits regulation of ads that lack the "magic words." So the short answer to what is left of McConnell is this: its holding that Congress can constitutionally prevent corporations and unions from using their general funds to run electioneering ads that do not use the magic words.

In effect, what we seem to be left with is a rule that Congress can regulate the funding of electioneering expenditures that meet what campaign-finance junkies call the Furgatch standard (named after a Ninth Circuit decision) of virtual express advocacy rather than the "magic words" standard. To be sure, there was and is an argument that the Federal Election Campaign Act (FECA) already covered such expenditures even before BCRA, and, indeed, the FEC some years ago adopted a regulation incorporating the Furgatch standard as its definition of expenditures under FECA. But some courts had held that Buckley foreclosed use of any standard other than "magic words" as a matter of constitutional law and that the Furgatch standard and the FEC regulation incorporating it violated the First Amendment. McConnell laid that notion to rest, and WRTL reaffirms that part of McConnell.

The move from a "magic words" standard to the Furgatch standard is a baby step compared to BCRA's intended scope, which would proscribe corporate and union treasury funding of all election-eve broadcast ads that mention candidates "” ads that, Congress and the McConnell majority found, overwhelmingly have the purpose and effect of influencing voter choice. Winding up with Roberts' restatement of Furgatch instead of BCRA's full scope is like taking four steps up a sand dune and sliding back three. But it still leaves us a little higher up the dune than we were when we started.

To be sure, corporations and unions will be able to run a lot of ads with electioneering messages that will escape regulation under the Roberts standard. But the move from a "magic words" standard to a "no-reasonable-interpretation-other-than-as-an-appeal-to-vote-for-or-against-a-specific-candidate" can still significantly constrain some forms of blatant electioneering that corporations and unions would otherwise likely engage in.

Indeed, just in the last eight months, the FEC has used the Furgatch standard to sanction a number of groups for engaging in improper campaign expenditures under FECA even though their communications stopped short of using magic words. In a series of consent dispositions, the Commission concluded that organizations including the League of Conservation Voters and the Swift Boat Veterans for Truth engaged in communications in the 2004 presidential election that could not be reasonably understood in any way other than as appeals to vote against specific candidates (Bush in the case of the League and Kerry in the case of the Swift Boat Veterans). These examples suggest that even under the Roberts standard, many attack ads may be so blatant that they will fall outside the protection offered by an as-applied challenge.


A few other points about the WRTL opinions may be in order (or, perhaps, out of order).

"¢ On one issue the WRTL Court was unanimous: WRTL's as-applied challenge was justiciable because it fell within the "capable of repetition, yet evading review" exception to the mootness doctrine. In so holding, the Court rejected the Solicitor General's argument that to show that a controversy is capable of repetition, a plaintiff must show a likelihood that nearly the precise facts giving rise to the controversy will repeat themselves. (Here, the government argued, WRTL would have to show that it would seek to run the same ads, or at least ads identical with respect to all legally relevant characteristics, again.) There was certainly language in a number of Supreme Court and other federal appellate decisions that provided some support for the government's view, but Roberts, joined by a majority of the Court and agreed with by all its members, said that the government "asks for too much." Roberts noted that the government's approach would virtually rule out application of the "capable of repetition, yet evading review" doctrine to as-applied challenges, because, as he pithily stated, "History repeats itself, but not at the level of specificity demanded by the FEC." It was enough, the Court held, that WRTL planned to run purported issue ads mentioning candidates in the future and would face the same statutory prohibition. The Court's holding on this important point will clarify, and liberalize, application of the mootness doctrine.

"¢ Roberts' opinion strikes me as generally a well crafted and sometimes eloquent statement of its position, but it falters when it tries to explain away McConnell 's holding that BCRA's electioneering communications provisions were not substantially overbroad because the "vast majority" of the ads they covered had the purpose and effect of influencing elections. According to Roberts, this did not in any way imply that the permissible scope of the statute had anything to do with the purpose and effect of the covered ads.

There is something more than faintly ridiculous about Roberts' purporting to explain what the McConnell majority meant when it talked about purpose and effect, given that he wasn't there, that he undoubtedly wouldn't have joined the majority if he had been, and that the four dissenters, all of whom were there and joined the majority opinion in McConnell, begged to differ with him about what they meant. The dissenters' irritation on this point shows through in Souter's pointed observation that Roberts' opinion "speculates" about why McConnell referred to intent and effect, and in his blunt statement that "we meant what we said in McConnell, and we did not overlook First Amendment jurisprudence when we said it."

It only adds insult to injury that Roberts' explanation of the McConnell Court's references to intent and effect is nonsensical. According to Roberts, McConnell referred to intent and effect not because they were relevant to the permissible application of the statute, but just because the evidence that had been presented on the nature of ads subject to BCRA's electioneering communications provisions consisted of studies that focused on researchers' perceptions of the purpose of the ads. Thus, according to Roberts, the Court had referred to intent in its overbreadth holding only because it had been presented with evidence that talked about intent, not because intent had anything to do with its holding.

Wait a second. The Court said that the statute was not overbroad because evidence showed that the vast majority of ads it applied to had the intent and effect of influencing elections. If intent and effect were irrelevant to the permissible application of the statute, the Court couldn't and wouldn't have cited evidence regarding intent and effect as support for the conclusion that it was not overbroad. Rather, it would have had to say the evidence was immaterial and did not support any conclusion about the substantiality, or not, of the statute's overbreadth. Just because evidence is presented does not mean that a Court has to rely on it. If the evidence goes to the wrong issue, it must be disregarded.

Thus, the Court didn't phrase its holding in terms of intent and effect merely because it had been presented with evidence that talked about intent and effect; it did so because it concluded that that evidence was relevant to whether the statute was overbroad, and it could be relevant to overbreadth only if the constitutionally permissible application of the statute related in some way to the ads' intent and effect. Roberts obviously disagrees with the McConnell majority that the purpose and effect of a campaign ad is relevant to the constitutionality of regulating how it is funded, but it's hard to deny that it is what the McConnell majority said, and meant.

Alternatively, in a later footnote, Roberts suggests that the issue doesn't matter much because whether a statute is substantially overbroad doesn't require that the "vast majority" of its applications be constitutional, and thus McConnell 's statements on this point are essentially surplusage. But while it may not be necessary that a "vast majority" of a statute's applications be constitutional for it to avoid overbreadth, it would seem that at least a bare majority ought to be constitutional, and on Roberts' line between what can and cannot be regulated, it is hard to see how the Court could have reached the conclusion that even the majority of the statute's applications would be constitutionally permissible.

"¢ Justice Scalia's concurring opinion is, typically, entertaining reading, with its references to Moroccan cartoonists, its biting "faux judicial restraint" characterization of Roberts' jurisprudential approach, its sarcastic asides (for example, a jab at the cognitive capacity of college students), and its memorable turns of phrase (including its description of the magic words express advocacy test as a "line set in concrete on a calm day," in contrast to the often-repeated quote that all that separates issue ads from electioneering is "a line drawn in the sand on a windy day"). One line, buried in a footnote, seems destined to become a minor classic: "If a tree does not fall in the forest, can we hear the sound it would have made had it fallen?" And while I'd have to call some of the opinion's characterizations of the history of the Court's campaign finance jurisprudence an exercise in revisionist history (particularly the effort to portray Austin v. Michigan Chamber of Commerce as a complete aberration in the Court's campaign finance and First Amendment jurisprudence), the opinion is at least for the most part true to its own logic.

But even Scalia's opinion has some perplexing features. After having made an argument that not only McConnell but also Austin (which permitted regulation of express electoral advocacy by corporations) was wrongly decided, Justice Scalia in the end inexplicably backs off: He concludes that the proper course is either to "eliminate restrictions on independent expenditures altogether" or to "confine them to one side of the traditional line"”the express advocacy line." Why the second course is acceptable to him he does not say, other than that it is "traditional," but "traditional" only in that it was announced in Buckley, heretofore not generally considered one of the Justice's favorite opinions.

Also hard to understand is why Scalia wastes his breath arguing that WRTL's proposed as-applied test would be better than Roberts', given his ultimate conclusion that there is no acceptable "as applied" test that is consistent with a holding that the statute is facially constitutional, and that McConnell's overbreadth holding ought to be jettisoned altogether, eliminating the need for any as-applied test.

But Scalia's most inexplicable statement comes in his footnote 8, where he states that the McConnell majority's belief that the ability of corporations to fund electioneering messages through PACs helped support the constitutionality of the statute "rested, of course, upon the assumption that for non-PAC genuine issue ads as-applied challenges would be available. The discussion today shows that to be mistaken."
Just how does a successful as-applied challenge, and one that opens the door to many others, show the assumption that as-applied challenges would be available to be mistaken? Of course, it shows just the opposite. Here, it appears, Scalia nodded. But the point is hardly critical to his analysis, and, hey, it's only a concurrence, not a majority opinion.

At least for now.

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