The Supreme Court is soon to hear the case brought by Wisconsin Right to Life, seeking protection for “grassroots lobbying” from the electioneering communication of BCRA.  The briefs are instructive.  Within them is found a volley of claims and counterclaims about what the Supreme Court said, or intended to say, in McConnell:  did the Court mean to rule out any as applied challenge to the prohibition on advertisements that name Federal candidates within the 30- and 60-day periods prior to primary and general elections?  This dispute is the least interesting of the arguments in the briefs, since all five of the Justices who joined in the majority opinion should know what they meant and can, when prepared, tell the rest of us.  More useful is the discussion of whether the law pegs the prohibition to an ad’s intent or to its effects, because the outcome may ride on the answer. 

       The Government argues that Congress was entitled to regulate the effects of advertising, without regard to intent.  Appellee's Br. at 38.  This, it claims, is the significance of judgments made about advertising within the 30- and 60-day periods: while such ads are typically if not always financed with the intent to influence elections, the finding more immediately relevant to the Court’s holding is their effect.  The Government spurns WRTL’s claim of a genuine “grassroots” lobbying purpose in the ads before the Court:  it doubts its sincerity but also dismisses the importance, one way or the other, of the organization’s state of mind.  The ads, exhorting viewers to contact their Senators (Feingold and Kohl) in opposition to judicial filibusters, are said to fall within the prohibition regardless of their purpose, because of their assumed electoral effect on one of the Senators, Feingold, who was also a candidate at the time. 

      This is a point of agreement with WRTL, which also maintains that the speaker’s state of mind—the question of intent—has no bearing on the characterization of the communication.  The application of the law “should be based exclusively on the content of the communication,” Appellant's Reply Br. at 16, and not on “external factors.”  Appellant's Br. at 33. 

       These points are not made with absolute clarity.  The Government’s brief, like McConnell itself, is peppered with references to purpose and intent, but also, in virtually the same breath, to effect.  Yet the Government understands that it might be faced with the question of how to treat pure lobbying intent—whether a showing of same would be enough to support an as applied challenge.  It is under this pressure that the Government avers that the “Government may act to prevent the use of corporate and union treasury funds for communications having such electoral impacts, regardless of the subjective intent of the advertiser.”  Appellee's Br. at 38 (emphasis added).  This position, perhaps taken under argumentative duress, might work decisively against its position.

     To the extent that the “prophylaxis” of the provision hinges on effects, not intent, the determination of effect depends on the structure of the communication.  A “reference” to a candidate within the specified pre-election periods might in the vast majority cases have the effect—an election-influencing effect—with which the law is concerned.  Communications structured differently might avoid or mitigate that effect. WRTL suggests some of the ways, following IRS rules:  that there be a genuine, pending legislative issue; that the advertisement reflect a view of the issue; and that the ad call on a legislator (not just a candidate) to act one way or the other on that issue, without any reference to elections or to the incumbent’s status as a candidate.  WRTL argues, in effect, that the Government cannot have it both ways:  linking certain ads to election-influencing effects, while refusing to allow for the possibility that other types of ads, written differently, could and would not have that effect, but would have others of a legislative nature.

      WRTL’s position does not require an examination of subjective intent, and so it is not, in that sense, “unworkable.”  Appellant's Reply Br. at 8.  Certain communications would simply, as grassroots lobbying communications, remain outside the zone of statutory concern and coverage.  Of course, other activities, such as coordination with candidates, would revive BCRA’s claim on the activity.  Where this does not occur, however, the communication would be sufficient, judged entirely by its content, to settle the question. 

      This distinction between an effects and intent test also brings out more clearly the choice Congress made between primary and backup tests, the former focusing on effects while the latter requires an examination of purpose.  The backup definition looks to whether a communication “promotes, attacks, supports or opposes” a candidate and to whether it is “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.”  2 U.S.C. § 434 (f)(3)(A)(ii).   This is a very different test than the “bright-line” primary definition that turns on candidate “references,” and the difference is one between an objective and a subjective test—between one concerned with effects and another with intent.  The one definition stands or falls on the communication, while the other allows for a wide-ranging consideration of any factors that may illuminate intent.

      Under WRTL’s view of the case, the McConnell Court’s dismissal of the overbreadth challenge rested on the conclusion that pre-election advertising structured a certain way—with references to candidates—typically reflected election-influencing intent but at any rate had demonstrated election-influencing effects.  And so the Court stated that “the justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.”  540 U.S. at 206 (emphasis added).  The intent is inferred from the effect.

      Other pre-election advertising with different content could not be charged with the same effect.  And since both parties to the case agree that an inquiry into intent is unworkable, and since the question of effect can only be decided by the substance of the communication, WRTL has ample room for its claim that as applied challenges are available for messages which, satisfying the legal  standards for grassroots lobbying communications, would predictably have that effect.  Those messages could not be treated as “the functional equivalent of express advocacy,” 540 U.S. at 206,  and they cannot be prohibited in the same way.

     Note:  As noted previously in this space, this firm filed a brief on behalf of OMB Watch and other 501(c)(3) organizations in support of the WRTL position.

Bob Bauer