Private: Supreme Court Hears Campaign Finance Case

Today, the Supreme Court will hear two cases which will determine the right of corporations and unions to fund ads which may influence an election.  At issue in these cases is a provision of the McCain/Feingold campaign finance reforms which prohibit "issue ads" that mention a candidate for public office within close proximity to an election.  The purpose of these provisions was to prevent "sham issue ads" which purport to discuss an issue, but which have the effect of supporting or opposing a particular candidate.

On April 12, ACS hosted a live panel on this case, streaming video of which is available here.

That panel featured the views of four legal experts with diverse views of how this case should be decided.  

Ben Ginsburg, who has provided election law advise to numerous conservative causes including the Republican Party, described the provision at issue in the Supreme Court's case as one that does little more than protect incumbents:

Incumbents love this provision . . . . Imagine, there is a law that cuts down on criticism of us, for what we do in the public arena . . . . and not only that, this law goes into effect when people will be paying the most attention.

Paul Ryan of the Campaign Legal center offered a spirited defense of the regulations at issue in this case, warning that  “there’s no functional difference between criticizing a candidate’s position on an issue, and criticizing the candidate directly. . . .”  Thus, Ryan argued, any attempt to draw a distinction between advocacy and issue ads would  “render BCRA’s electioneering communications provisions meaningless.”

Michael Trister, who represents progressive non-profits in his legal practice, noted that the FEC paid a fair amount of attention to the websites of advocacy groups in its brief, and warned that should the FEC begin regulating internet communications, the result could be an unmanageable system:

The FEC makes a big deal, and says that if you are considering whether certain broadcast ads are electioneering and have an electioneering intent, you can look at the website.  They make a big deal about what Wisconsin Right to Life had on its website, which of course is a separate communication. . . . to go down that route would be a virtually impossible task.  You would have to figure out who was responsible for what on the website.  You’d have to figure out who wrote what on the website, and you’d have to decide whether certain aspects of the website were separate enough from other aspects of the website. . . .  That will open up exactly the kinds of extensive evidentiary hearings that are impossible to resolve in this context.

Finally, lawyer and blogger Adam Bonin called television ads a "constitutional dinosaur," and predicted a world in which they would no longer shape political debate: 

When you look at what communities like MoveOn.org have been able to accomplish by relying on appeals to membership—which, beyond a willing audience, can have a quick production time in framing an e-mail, unlike WRtL’s tv ads—well, it makes you wonder why an organization would bother with a method that’s so much more expense if the true purpose was stimulating grassroots activity.

 

There’s a second point about effectiveness and technology that needs making.  Thanks to TiVo/DVR technology, iTunes, plummeting newspaper circulations and the like, traditional advertising is dying anyway.  It’s just easier to avoid the places where unwanted message can be pressed. . . .  So it strikes me that these groups have to move to “opt-in” or pull technology sooner rather than later anyway.

Equality and Liberty