Few of the provisions of McCain-Feingold better define the battle lines in modern campaign finance than the 30- and 60-day pre-election corporate and union broadcast prohibitions.  Yesterday’s 2-1 decision in Wisconsin Right to Life v. FEC succinctly brings out the opposing views.  The majority wishes to judge advertisements, in distinguishing the campaign from the issue ads, only on their text—on whether, as written, they clearly "expressly advocate" the election or defeat of candidates.  For the minority, this is (in Rick Hasen’s concurring view), a "see no evil" approach, blind to "context" and therefore to political reality. 

     Should courts probe into political "context" to discover the "intent" behind a political communication?

     Dissenting judge Roberts proposes to do just that.  His opinion is hot with suspicion.  He argues that however WRTL fashioned the ads in question—calling on voters to ask Senators Feingold and Kohl to oppose the judicial filibuster—there are clues scattered about the history of the matter to point to an intent to influence the outcome of elections.  WRTL had long opposed the candidacy of Senator Feingold.  In other communications, it had made this clear.  And Judge Roberts questions, too, whether the entire case before him was a set up, filed only to test the law and not for any bona fide purpose of clearing the ad through judicial channels.

     As the majority notes, it is nonsense to say that as-applied challenges supply appropriate, timely constitutional protections if, upon filing, they will be subject to painstaking inquiry in the context in which they were made and aired.  WRTL’s ads have now bounced around the courts for some three years—with more years still to go before the case concludes.  The two pronged test adopted by the majority—limiting the "express advocacy" inquiry to the four corners of the ad—at least allows for some chance of meaningful as-applied review and resolution within the periods prior to an election.  No such chance is afforded by the dissent’s insistence on a full contextual review.

     Such a review might also make a sensible citizen's blood run cold.  Judges have no special capacity for political judgment, not of the kind called for here.  Often the judgment they do exercise is heavily seasoned with conventional cynicism about political tactics and motivation.  They are all too ready to follow the government into the emails and private conversations and inferred objections of political actors, in search of the real scoop—of "what is really going on."  The proceedings become an intrusive process in which political operatives and consultants are put under oath and questioned about what they meant and intended and thought. 

     Let us assume that operatives get away with something.  Assume that the ads that they craft have a subtle effect on voting behavior, but, in the majority’s words, the ads are written so that they need not necessarily reflect this intent.  Such subtlety answers itself.  It can hardly endanger the high purposes of the campaign finance laws if some voters might, in some way and to some indeterminate degree, come away from an ad with some greater inclination to favor or oppose one candidate or another.  Perhaps the moment of attraction or repulsion lasts only as long as the next ad; perhaps, it passes even more quickly than that.  Maybe a doubt is raised in the voter’s mind, only to be later and finally put to rest.  This sort of potential and possibly ephemeral "influence" does not justify bludgeoning the advertiser with a litigated, "contextual" inquisition into "intent."

     Of course, there is the chance that it all works the other way around and that while the advertiser intends no such effect, the ad, in the volatile politics of the moment, achieves it anyway.  "Context" overwhelms intent, and voters, aroused over the issue in the ad, are driven toward or away from the elected officials whom they are urged to contact ("Call Senator so-and-so, tell her such-and-such).  For the majority, "reliance on effect, without the requisite intent, would be the equivalent of permitting listeners’ subjective impressions to justify the regulation of protected speech."  WRTL v. FEC, No. 04-1260, slip op. at 22 (Dec. 21, 2006).  

     The dissent appears to agree that this presents problems and so Judge Roberts wishes full attention turned to the speaker, untroubled by "inquiry into the subjective intent of the speaker in determining the type of speech made."  Id. at 35.  The inquiry he has in mind seems both lacking in rigor and surpassingly irrelevant.  To begin with, there is the obscure formulation of the factual test, such as it is, by which intent would be identified:  "WRTL’s role in the political environment that wrought the ad campaign in the first place could be probative of…intent."  Id. at 39.  "Role in the political environment that wrought  the ad campaign in the first place"? 

     In its specifics, this seems to mean some general impression of organizational intent fostered by a) past activities and communications through which the organization expressed opposition to the officeholder as a candidate; b) similar activities around the time of the ad; 3) the issue addressed in the ad as a campaign issue, argued as such elsewhere even by others; and 4) the timing of the ad.  Id. at 39-41.  As WRTL has insisted, this is evidence that it has opposed Senator Feingold, but it cannot establish the exclusive or primary intent of the ads before the court.  These are ads; they might be expected to speak for themselves, especially if they are to have the presumed effect on voter opinion.  Yet the dissent wishes to gather from the environment other statements, at other times, to put into the ads the clear electoral advocacy missing from their plain text.

     Where this leads the dissent is this conclusion, which seems to undo its entire project:  "[A] genuine issue of material fact exists as to whether WRTL intended its ads to expressly advocate for the defeat of Senator Feingold."  Id. at 38.  Here is the concession that the ad might not include express advocacy, but that just the intention to have it do so is enough to bring the election laws crashing down on the advertiser.  Ad content, by this analysis, would count not at all.  An "express advocacy" test is replaced with an "apparent intention" test.  Even the second prong of the FEC express advocacy rule, as much as it refers to the interpretation of an ad to the variable understanding of the "reasonable person," requires attention principally to ad text, "with limited reference to external events."  11 C.F.R. § 100.22(b).

     Defenders of the law will reply that the pre-election broadcast prohibitions were an escape from the demands of a text-based express advocacy test.  They have insisted, heatedly, that only a reference to a candidate, within the specific time periods, should be needed to bring an ad within the ad’s strictures.  Yes, but:  the challenge brought by WRTL is an as-applied challenge, which contends that while perhaps many or most of the ads with these references, run in these time frames, may evidence an election-influencing intention, its ads do not.  The majority reasonably concludes that the first order of business in hearing this claim is text analysis, conducted under an "express advocacy" standard. 

     Sooner or later, the Supreme Court having noted that "genuine" issue ads exist and might permissibly run even in election seasons, these ads will enjoy some protection under some developed, reasonably understandable standard.  The FEC, effectively invited by the Court to try its hand at such a standard, declined to do so.  This was a mistake, and the reform community, playing for time and gambling on a better outcome, joined the FEC in forcing this task on the courts.  It may well come to regret that it did so.  

Bob Bauer