Where there’s a will, there’s a way.
These words have particular significance in the realm of campaign finance reform, which saw a reaffirmation of its core values by the U.S. Supreme Court in 2003 – and then, in 2004, the creation of a myriad 527 organizations trying to get around those values.
In a new chapter, the Supreme Court announced last week that on its 2007 docket would be case tackling the sticky issue of campaign finance. The case revolves around an ad that ran in 2004, urging Wisconsin residents to ask their Sens. Russ Feingold and Herb Kohl – both Democrats – to oppose a filibuster on the approval of President George W. Bush’s Supreme Court nominees.
Typically, the ad might have gone unnoticed by all but a handful of television viewers. But at the time the ad was broadcast, Feingold happened to be running to keep his Senate seat in the 2004 elections. And under the Bipartisan Campaign Reform Act of 2002, which Feingold co-sponsored, such an ad is a no-no.
Or so argues the Federal Elections Committee, which has been engaged in a legal battle with the nonprofit corporation that put out the ad, Wisconsin Right to Life Inc., since 2004. A provision in the BCRA prohibits corporations and unions from putting out ads that mention a federal candidate up to 60 days before a general election.
But Wisconsin Right to Life contends that the ad was purely an “”issue”” piece designed to encourage voters to express their opposition to the filibuster, not designed to support or oppose to any candidate. Indeed, the ad identifies the senators only as state representatives to contact, and politically links neither senator to the filibuster.
The question before the court is whether such an ad constitutes protected free speech, or if it meets the conditional restrictions on the First Amendment provided by the BCRA. In the 2003 McConnel v. FEC decision, the high court’s majority ruled in favor of the wording of the BCRA, judging that “”issue”” ads – political ads that do not explicitly campaign for a specific candidate – were substantially equivalent to “”electioneering ads”” that do.
But the game has changed now: Justice John G. Roberts has replaced William H. Rehnquist as Chief Justice, and perhaps more significantly, Justice Samuel Alito has taken the place of retired Justice Sandra Day O’Connor, who helped write the 2003 majority opinion.
Supporters of campaign finance reform are concerned that if the new court elects to reinterpret the law, a substantial loophole would be introduced into the McCain-Feingold bill.
Under a weaker interpretation of the law, corporations and unions could conceivably create ads that are able to influence elections with what are presented as simple “”issue”” ads. For instance, such an ad might list several officials – one of whom is coincidentally running for federal office – who are opposed to abortion, insisting that viewers let their representatives know how they feel about the issue. Such an ad, many have argued, could influence voters in a coming election, even though the “”apparent”” goal of the ad is purely issue-based.
On the other side of the issue, lawyers for Wisconsin Right to Life have argued that the current interpretation of the law means that valid political commentary – such as criticism of the Democratic filibuster – can be shut out unduly.
The case pushes question of campaign finance reform into especially cloudy waters. A revised interpretation of the BCRA could mean that lower courts would need to make judgments based on exceptionally difficult tests – such as what an ad is meant to accomplish, and how an ad is interpreted by the general public.
This sort of uncertainty underscores the ultimately futile nature of finance reform. With the stakes as high as they are, no matter how many rules are created to prevent, there will always be a loophole. Even if all political ads are restricted, how long until corporate pressure finds its way into newspaper editorial boards, influencing public opinion in ways that are far more insidious?
As former Justice Sandra Day O’Connor wrote in the 2003 McConnell decision: “”Money, like water, will always find an outlet.”” We will most likely have to settle with an imperfect system of campaign finance.
Depending on the leanings of the Supreme Court’s newcomers, next September may see a slew of campaign ads or a dearth of them. But for what it’s worth, the political influence of TV ads is easy to recognize – and it may be the less of two evils.
