Supremes loosen the rules on ‘issue ads’

June 25th, 2007 – 10:47 PM by D.J. Tice

tice.jpgThe central importance of Supreme Court appointments among the powers of a president was reinforced yesterday when the U.S. Supreme Court issued a somewhat subtle but very important First Amendment ruling. To a great extent it sets political advertising by independent organizations free from scotus.jpgsweeping restrictions enacted, and upheld by the high court, just a few years back.

The case involved a Wisconsin anti-abortion group and a set of so-called issue ads it broadcast shortly before the 2004 election. Sen. Russ Feingold was running for re-election that fall and he was mentioned in the ads.

Those ads were a crime under the dramatic 2002 campaign finance reform law popularly known as McCain-Feingold. Perhaps the most remarkable provision of that law prohibited independent ads — those sponsored by advocacy groups, corporations, unions and so on — within 60 days of an election if they could be construed as favoring or opposing the election of a federal candidate.

Three veteran members of the court — Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy — argued that the court should have reversed its own earlier ruling and declared all of the law’s restrictions on independent ads unconstitutional.

But those three went along with the more incremental judgment of the court’s newest members, George W. Bush appointees John Roberts and Samuel Alito. The ruling can therefore fairly be seen a sign of what Bush has wrought on the court.

Roberts and Alito stuck with a distinction the court has long made between “express advocacy” ads — which say things like “Elect Jones” or “Dump Smith” — and “issue ads” that don’t try to influence voter behavior so plainly.

But Roberts and Alito rejected language in the 2002 law that said issue ads which even mention a candidate for federal office are outlawed as the “functional equivalent” of express advocacy ads.

The new ruling imposes a new standard that may effectively neutralize McCain-Feingold’s attempt to rein in attack ads masquerading as issue ads. The standard says that an issue ad cannot constitutionally be prohibited unless there is no reasonable interpretation that could see the ad as anything but a disguised effort to influence the election outcome.

That’s a pretty big “unless” and would seem to restore spacious constitutional protection to issue ads, even if they have the effect of influencing voters but good.

The dissenters thought so, writing: “After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.” In the minority were Justices David Souter, John Paul Stevens, Ruth Bader Ginsburg and Steven Breyer.

Now, whether loosening these restrictions on the political debate of independent organizations is a bad thing or a good thing is itself debatable. I myself have never been able to understand why journalists and media companies should be able to mention candidates in any way they please right up to election day if everybody else can’t.

Anyhow, the rules on political speech never seem to get simpler, and the court has changed the landscape yet again.

11 Responses to "Supremes loosen the rules on ‘issue ads’"

Bill Prendergast says:

June 26th, 2007 at 1:11 am

Mr. Tice nailed it in the very first paragraph. The *exciting* thing about the story is that the Supreme Court effectively reversed its own decision after only a few years.

You see, there’s this fiction that appeals courts like to preserve; the fiction that they are “find” the law in a situation in much the same way that mathematicians “find the correct answer” to a mathematical problem.

If that were true, the courts would be (as they sometimes still claim to be) above petty, partisan politics. They would be experts ‘above the tawdry political process’, and bound by the precendents of their predecessors on the USSC bench.

But that is not how it works. The court is political, though it pretends not to be, and so appointments to the courts are key as Mr. Tice indicates. The justices and appelate judges can and do use their authority to impose a political agenda on the nation; if they don’t, how can you explain the shifting findings in the law as the court becomes more conservative than liberal?

One thing is for sure: what the appelate judges write in their official capacity and hand down as a decision is law, the law of the land, whether it is right, wrong or indifferent. So don’t believe the other fiction touted by conservatives: the fiction that appellate judges don’t or shouldn’t make law. They do; lawyers know they do and the judges know they do.

The moral of the story is that you should pay very careful attention to the selection of appellate judges and Supreme Court justices in particular. Their personal political philosophy is going to be just as important in affecting your life as their expertise in the law.

Justin C. Adams says:

June 26th, 2007 at 5:47 am

“YOU have the right, to free speech, that is as long as you’re not dumb enough to actually try it”.

Gotta love The Clash.

The USSC, not so much.

Justin C. Adams says:

June 26th, 2007 at 6:02 am

Tice, surely you aren’t serious when you say you don’t understand why journalists and media companies can “mention” candidates.

“congress shall make no law abridging the freedom of the press”

And for “everybody” else, well, everybody else can “mention” candidates whenever they like. Mentioning is an act of speech, protected by the clause immediately preceding the one above.

“Everybody” is misleading – we aren’t talking about entities with bodies – we’re talking about institutions. And “Mention” is misleading, as we’re not talking about talking but rather about spending money.

If “spend money” is equivelent to “speech” in the first amendment, then the interstate commerce clause was repealed by the first amendment. Anyone should have every right to buy whatever they like, from atomic weapons to opium poppies, as they are simply expressing their opinion, an activity which “shall not be infringed”.

Such a conclusion is on it’s face absurd. It is a good way to reason about the constitution, to look at the consequences of various interpretations and see if they are yield reasonable or absurd conclusions.

The prior ruling holding that campaign contributions are political speech is absurd. The current ruling that campaign contributions by corporations are political speech is even more absurd. No vocal chords. No speech.

The Grace Kelly says:

June 26th, 2007 at 8:28 am

Why do corporations get rights? Why is a corporation’s right to speech protected? Can any single individual stand up to a corporation?

Any individual’s resources are limited, the corporations’ resources are not limited.

Corporations already have more favorable tax laws, already have full standing in court and even have more favorable bankruptcy laws (See Northwest).

Yet corporations have only a charter to create profit. The corporate charter should be changed to include benefits to the community and just reasonable profits (from Henry Ford). We have created a social institution that has no morals, no heart and is actually hurting people.

Who protects the people from these powerful players – the corporations? Apparently no longer the law, the Supreme court nor the government.

Soon we can just say We, the people are ignored by the government of the corporations, by the corporations and for the corporations.

swschrad says:

June 26th, 2007 at 9:53 am

the wal-marting of America continues. “you look like you need a smile… have one of mine.” big as a pizza, with epoxy on the back, should cover your face nicely.

Jay says:

June 26th, 2007 at 1:13 pm

Grace: “We have created a social institution that has no morals, no heart and is actually hurting people.”

Or perhaps We the People simply have a greater responsibility to instill those morals and heart ourselves, rather than relying on “corporations” to do this for us. The problem is that we apparently don’t have enough individuals with the character or integrity to do so.

The “oh, poor me” hand-out line forms to the left. Everyone get in line.

Paul S. says:

June 26th, 2007 at 1:20 pm

Grace –

a. The idea that there is “a corporate agenda” on politics in general, or any major issue at all, is largely ridiculous.

b. As the dissenters said, it’s not just about corporations, it’s also about unions.

c. It’s not just about the right. There’s plenty of big-money left out there.

d. And it’s not just about organizations, it’s also about individuals. The wealthy seem sufficiently divided politically that we won’t really have to worry much about the liberal side having no money.

John E Iacono says:

June 26th, 2007 at 4:12 pm

As one who thought the original ruling was an outrageous effort by those in power to muzzle a huge segment of the organized public who might oppose them, I welcome this new ruling.

To those with whom I disagree, welcome back to the pre-election fray! To those with whom I agree, I breath a sigh of relief that you may now be heard. This feels more like America again!

Justin C. Adams says:

June 27th, 2007 at 6:03 am


Largely ridiculous? Are you saying “corporate agenda” in quotes to mean some grand conspiracy comprising all of the captains of industry?

Because unless you mean this, you’re quite incorrect. Industries and its leaders have broad goals. Taken as a whole group, they have an agenda to reduce corporate taxes and federal regulations. Taken as individual industries, they have a vareity of agendas. For example, it is the Auto industry’s agenda to avoid a mandated higher fuel efficiency. It is the religion industry’s agenda to increase faith based iniatives. It is the farming industry’s agenda to increase ethenol consuption.

Corporations, Unions, PACs, 527s, 503c groups, churches. You’re right that it isn’t just about corporations.

You’re also right that there are plenty of powerful people, people with sufferage, if you will, who can influence an election from both the right and left.

The problem regarding right and left, as you say, is that these people aren’t me. Or lots of other people of just regular means. I for one greatly enjoyed the romantic notion I was taught, that we participate and make a difference, that we the people are represented, that we all have an equal voice. The ruling undermines one man, one vote. This, as I’ve said before, is not consistant with the guarantee of a ‘republican form’ of government, a system typified by one man one vote since the reconstruction amendments.

But this ruling is not about individuals. You make this clear by saying “we don’t really have to worry about the liberal side having no money”.

The liberal side is a group. My liberalism is not the same as Prendergast. Or Sorros. Who gets to define liberalism? Is that me, or Prendergast, or Sorros? The same is true of the conservative style. Do you get to define conservatism?

The liberal side and the conservative side have money, that is true. But my voice isn’t represented by significant money.

I do contribute to various candidates and causes. My contributions, however, are linked to my means. Here’s multiple choice. When I threatened to withdraw my membership with MPR over whether the Green Party Candidate could participate in the state auditor’s debate, MPR a) changed their policy or b) kept their policy, evaluating that my $10 per month not to be all that important in the scheme of things.

What happens at MPR when the Sloan foundation objects to a policy, do you think?

Les says:

June 27th, 2007 at 2:28 pm


“No vocal chords. No speech”

Where, pray tell me, are the Strib’s Vocal chords located? How about move-on.orgs?

John E Iacono says:

July 1st, 2007 at 12:38 pm

I have read and re-read the comments on this Supreme Court ruling, and I have a few more thoughts to express:

For-profit corporations are simply legal entities created by groups of individuals (stockholders) to accomplish their stated goals. Often, hired management conducts the day-to-day business, but ultimately you and I, if we are stockholders, insist that the management promote our interests. Just because we organize under the umbrella of a legal entity should not mean we lose our right to speak to the public as an organized group.

Non-profit Corporations:
Again, these are formed by citizens who have a particular public agenda, whether it be the environment, education, religious belief, political convictions, or benevolent activities on behalf of some or all of the public. It seems to me each of the persons who form or join these groups has a right under the constitution to express those beliefs and promote that agenda in an organized way.

Other Groups:
It seems to me that the labor unions, the management associations, the renters associations, and all the other organized groups which delightfully proliferate in our open society also are entitled — even required — to have free access to whatever means they wish to express their views.

During the 1930′s Pope Pius XI emphasized in the face of rising totalitarianism the crucial role that various associations play in the control of all powerful governments, and supported the rights of all human beings to freely associate with one another in all kinds of groups.

Inherent in these rights is the right to EXPRESS one’s views, not matter whose ox is gored.

In America, the resulting cacophony of voices has been the despair of the power hungry, and the salvation of our society, whether the debate raged over the Declaration of Independence, the War of 1812, the Erie Canal, the expansion of slavery, the use of the gold standard, the interference in European wars, the rights of women to vote,the use of nuclear power, the rights to equal treatment under the law, the role of government in the right-to-life/choice debate, and on and on. We have not only survived these acrimonious debates, we have prospered because of them, and become a better society in many ways.

It seems to me that ANY attempt to shackle this right of Americans to “have at it” whenever things we care about are threatened is a path to the destruction of our society. And it is to me an ominous sign when — once again, as in the societies of Europe, the thrust comes from those in power.

I not only support this recent decision, but hope that the whole attack on the rights of Americans to engage in free-swinging debate which McCain-Feingold represents will be thrown out at opposed to what America has been all about.

The only restriction I might support would be that any interest group be required to list in each ad the names of it’s top five supporters.

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