Working Paper No. 08-05:
Render Unto Caesar, Inc.
Date Posted: February 2008
The Supreme Court’s FEC v. Wisconsin Right to Life fits comfortably into a legacy of decisions in which the Supreme Court has toyed with Congress’s ability to restrict the political speech of “outside groups.” In these cases, the Court offers a schizophrenic vision of political regulation. It seems unable to conclude whether the independent opinions of certain social actors, spread among the public via the “expenditure” of their funds, poses a corrupting danger to campaigns or elections that justified deference to Congress’s regulatory choices. If it does, Congress should be able to step in and restrict such pernicious activity. If it doesn’t, Congress shouldn’t.
But because the Court can’t decide, it has instead developed an “in-but-not-in” alternative, which permits Congress (and state legislatures) to restrict the independent speech of corporations and labor organizations if the message is “too political.” For some time, “too political” has meant that the speech expressly advocated the election or defeat of a clearly identified candidate, or (in pre-BCRA decisions and in some administrative enforcement matters) involved “active electioneering."
Congress further limited this speech with its own “electioneering” statute, the Bipartisan Campaign Reform Act “BCRA”. The litigants in Wisconsin Right to Life argued successfully that this law, as applied to them, impermissible burdened their speech rights. After Wisconsin Right to Life, “too political” now includes only speech that is “the functional equivalent of express advocacy.”
The Court has affirmed – for the time being – that the First Amendment permits the government to implement a content-based speech restriction, based on the legal form of the spender and whether a message contains something akin to express advocacy. One would assume, following conventional First Amendment doctrine, that the Court would have found some compelling state interest to support such a blanket rule. But it hasn’t, and Wisconsin Right to Life perpetuates this oversight. If the Court takes political speech rights seriously, it should revisit the spending prohibitions and either build a reasoned justification for them or find them unconstitutional.