Supreme Court Decision Paves Way For More TV Ads


Broadcasters won a victory in the Supreme Court Monday that could free up even more ad dollars at election time.

In a 5-4 decision, the High Court, giving "the benefit of the doubt to speech, not censorship," upheld a lower court ruling that a TV or radio ad can include the name of a federal candidate (so-called electioneering communications) without automatically triggering a campaign finance prohibition.

Fewer restrictions means the potential of more issue ads from special interest groups.

The Bipartisan Campaign Finance Reform Act prohibits the use of corporation or union general treasury funds to pay for ads for or against specific candidates in the immediate run-up to a federal election.

The High Court did not challenge the constitutionality of regulating electioneering communications, which it had previously upheld. But it said the law's "intent" test for what qualifies as advocating or opposing a specific federal candidate is unconstitutionally broad and that an issue ad does not automatically become electioneering with the mention of a candidate's name. Instead, the Supreme Court majority argued, "a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

The challenge had been brought by Wisconsin Right to Life (WRTL), which had run radio and TV ads about filibustering judges that mentioned Senators Russ Feingold and Herbert Kohl. The campaign speech regulation on advocacy ads applies only to radio and TV, not print ads.

Campaign law prevents a corporation or union from spending general treasury funds to pay for a broadcast ad that refers to a clearly identified candidate in the 60 days before. The Supreme Court had already upheld the general constitutionality of regulating advocacy ads, but left open the question of whether the reference to a candidate made them, de facto, advocacy ads. As of Monday, they don't.

A three-judge panel of the D.C. Court of Appeals had agreed with WRTL that the ads in question were not advocacy ads or their equivalent and that the government had "failed to demonstrate a compelling interest in regulating the ads."

Writing the majority opinion, Chief Justice John Roberts said: "We conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy."

The majority also took issue with the "intent" test by which the WRTL ads had been judged electioneering communications, i.e. those targeting a candidate. "Far from serving the values the First Amendment is meant to protect," the majority wrote, "an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of [the intent standard] on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue.

"No reasonable speaker would choose to run an ad covered by the Bipartisan Campaign Reform Act, if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard 'blankets with uncertainty whatever may be said,' and 'offers no security for free discussion.'"

Joining Roberts in the majority were Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. Dissenting were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Commenting on the decision, co-author of the campaign finance reform law Senator John McCain (R-Ariz.) said: "While I respect their decision in this matter, it is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election."