In the second part of his paper on WRTL, Rick Hasen moves from theory to practice, and he finds that incoherence in the theory will mean no practical defense against a flood of new corporate spending in elections.  He is sure that it will be simple for campaign consultants, lawyers at their side, to write their way around any legal limitations in producing, at corporate expense, effective campaign ads.  Whatever remains of "difficult line-drawing" (Beyond Incoherence at 28) will be primarily interesting to academics and judges but of little significance more generally, in the enforcement of the law.

      To arrive at this gloomy view, Hasen has to slight the emphasis in WRTL on the omission from lawful "issue" ads of any condemnation of candidates, or of any attacks on their character or fitness . Ads are not to "take a position on a candidate’s character, qualifications, or fitness for office" if they are to remain within the sphere of issues speech.  127 S. Ct. at 2667.  In discussing the hypothetical Jane Doe ad, moreover, the Court noted critically that such an ad "condemns" the candidate’s record on an issue, which is not what the WRTL ads approved by the Court could be said to do.  127 S. Ct. 2667, n.6.

      Hasen allows for the possible importance of this language, but ambivalently so.  It is "important," he would agree, but only because it "may have muddied the waters" of the principal opinion.  Beyond Incoherence at 30.  It is not clear what it means to say that the Court’s analysis was "muddied" by these statements.  This was very much part of the Court’s analysis and it seems clear enough.  Hasen frets that the law will be eroded if just these kinds of attacks, mounted in the guise of issues speech, are permitted, and here the Court seems to agree.  Rick won’t take "yes" for the answer.

      Rick says that "it will be easy to avoid express words of condemnation (as well as the candidate’s candidacy, character, and fitness for office) while still crafting an effective ad."  Id. at 31.  He is certain that "ad hominem attacks are a rarity and likely ineffective as a matter of campaign policy."  Id. at 29.  Others think the effective ads in contravention of the law may not be so easy to craft.  They will not agree that ad hominem attacks are so rare or useless.  And it is reasonable to wonder why a standard that seems to exclude such attacks, necessarily sharpening the focus on issues, would so annoy Hasen.  It seems a step in the right direction, does it not, away from the worst of the ads branded as "sham"?

     Hasen can’t be happy because he imagines that corporations will still find the standards manageable in spending on ads with "likely" effect (id. at 33) on elections.  He wants to see fewer rather than more of these ads.  He will have to settle for fewer of the nasty, personal ads; and ones he does see will reserve their bite for issues. 

     As line-drawing goes—and the lines do have to be drawn—it would be easy for the reform-minded to imagine a worse result.  Rick, however, is inconsolable.

 
Bob Bauer