Former FEC head discusses effect of Supreme Court political ad decision on '08 elections

The Supreme Court recently ruled in Wisconsin Right to Life, Inc v. Federal Election Commission, granting corporations and interest groups more power to run television ads before elections. What does this ruling mean for the 2008 presidential elections and, more specifically, for energy and environment interest groups? During today's OnPoint, Bradley Smith, former commissioner of the Federal Election Commission and currently an attorney at Vorys, Sater, Seymour, and Pease, discusses the ruling in the case and what it will mean for future elections. Smith also discusses future litigation that may come as a result of the Court's decision.


Monica Trauzzi: Welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Bradley Smith of Vorys, Sater, Seymour & Pease. Bradley is the former commissioner of the Federal Election Commission. Thanks for coming on the show.

Bradley Smith: It's a pleasure.

Monica Trauzzi: The Supreme Court recently ruled in the Wisconsin Right to Life case which deals with the funding of political ads. Talk a bit about the case. What was the main issue brought before the court?

Bradley Smith: Sure. We need to go back a little bit first to the McCain-Feingold law of 2002 and bring back fond memories for Washingtonians. One of the provisions of that law was that no ad could be run by a corporation, including a nonprofit corporation like the Sierra Club or something, or Wisconsin Right to Life, or using any corporate or union money at all, if it mentioned a federal candidate within 30 days of a primary or 60 days of an election. And the purpose of this ad was to try to get off the airway what were sometimes called sham issue ads. That is ads that did not explicitly argue for the election or defeat of a candidate, but said things like Congressman Smith wants to poison your well water and he's been seen stealing senior Social Security checks. Call Congressman Smith and tell him that's not what we want him to do or something. So that was the basic provision that was in place. Wisconsin Right to Life argued that as a nonprofit membership organization they had to have the right to talk out, to speak out to the public about issues of importance to them. And this was in the summer of 2004. Republicans in the Senate were vowing to try to break the filibuster on President Bush's judicial nominees. And Wisconsin Right to Life wanted to run ads urging senators Kohl and Feingold to support breaking those. So the question was could they do it? Constitutionally were they required to have an exception to the McCain-Feingold law?

Monica Trauzzi: And it makes its way to the Supreme Court. Ultimately, how did the court ruled?

Bradley Smith: It gets to the Supreme Court and the court rules that, yes, they are entitled to run these ads even though Wisconsin Right to Life is itself a corporation and even though it also accepted corporate donations, that is, money from for-profit corporations. It was not merely that in itself was a membership corporation; it met the corporate definition in both ways. The court rules in a decision that is very skeptical of government regulation in this area, that they have a right to do this. And basically if such an ad could be interpreted by any reasonable person as something other than an ad aiming at electing or defeating a candidate, then they have a right to air that ad.

Monica Trauzzi: So broadly, what kind of impact do you see this having on the 2008 presidential election?

Bradley Smith: Yeah, so we get down to what this means now.

Monica Trauzzi: What does it mean?

Bradley Smith: And what this means is that there will be an opening again for some of the type of ads that we saw prior to McCain-Feingold that are run within 60 days of the election or within 30 days of the various primaries, that talk about candidate's positions on the issues, sometimes in fairly harsh terms. Just how broad the exception is, is going to be tough to say. The court noted a number of factors in the Wisconsin Right to Life case, like the fact that the issue was a public issue that was being debated, that the organization did not expressly advocate, of course, for a candidate. Obviously, if they had done that the court would have held otherwise. They went down a list of factors like that. It's not quite clear how broad the exception is. And any group that would want to challenge it now will have to either go to the FEC and ask for an advance advisory opinion, permission so to speak, or they will have to run the ad and see if the FEC, the Federal Election Commission, challenges them and if they do, if they can beat it in court, if they can fit within that exception. So it's a little bit tough. How much it will matter may depend on how much people decide that they're risk averse, how much they decide they don't mind taking the risk, and maybe what a couple of early lower court decisions interpreting it will be.

Monica Trauzzi: Corporations and labor unions have sort of found ways to skirt around the 2002 rule. So are we really going to see a visible difference in the number of ads during the 2008 election?

Bradley Smith: Well, I think you'll see some, but I don't think you'll see a lot. I mean some of the folks who have argued in favor of limiting campaign speech in these ways over the years are saying, "The sky is falling! We're going to have an avalanche of ads." I don't think so. I mean even at its height, prior to McCain-Feingold, it was a relatively small proportion of the total campaign spending. Secondly, groups, as you kind of indicate in the way you frame the question, have moved on. They've figured out other ways to operate now and those genies are out there. They've adapted themselves and so I'm not sure they'll go back to the old way of doing things. And, again, it's not clear just how broad this exception is, so people will need to be a little risk averse. But I do think that we'll see ads by groups such as the Sierra Club or the Environmental Defense Fund, which distributed these ads before, coming out with ads that are very critical of some of the Republican candidates, particularly in the presidential primaries and so on. And I do think this is an opening for industry groups as well to get their message out. You know, it's not at all inconceivable that Congress would be voting on all kinds of things close to the 2008 election that are relevant to business and industry. And this says to those groups you can get your message out and talk about members of Congress when you do that.

Monica Trauzzi: And climate change, climate change is likely to be a major issue. There's a huge emphasis already in the preliminary debates. What does this ruling mean? More broadly you touched on it with the Sierra Club. What does it mean for environment and energy groups as we head into the 2008 election?

Bradley Smith: Right. Well, as I say, in the past both the Sierra Club and Environmental Defense Fund, that's why I mention those groups, were fairly active in running these types of ads. They do ads, you know, imagine if there were an oil spill off the coast of Florida, things like that, and President Bush's policy is going to lead to this and that sort of thing. I think we'll see some of those ads again, but, again, I think it's very important to realize that this is a two-way street as well. And now business and industry will also be able to go out and they'll be able to put up ads without worrying about it that say, look, Congress is about to vote on this carbon exchange legislation or something like that, and say, "This is bad." And they can say, "Call this senator and tell him to vote against it." You know, they can get right to the point. So it's useful to everyone in that sense. And who will benefit most or who will lose kind of depends on who takes most aggressive advantage, who comes up with the best message, who has the best ads. And to me that's how it ought to be. You know politics ought to be about people putting their message out there and letting the voters decide.

Monica Trauzzi: Advocates for limiting campaign spending say this is going to mean tons of corporate money being thrown into TV spots pushing one candidate or another. Are you expecting that to be the case at all?

Bradley Smith: Well, there will be some increase again. You know, it's kind of funny, that status of that is a de facto bad thing. I have to admit, for people like myself, who cheered this decision by the court, that's a great thing. That was the purpose of the lawsuit, was to allow corporations and unions, including incorporated membership groups like Wisconsin Right to Life, to run these kinds of ads. So, yes, I do think we will see more. But for the reasons I outlined a moment ago I don't think we're going to see some avalanche that's going to sweep everything away. Remember, the leading presidential candidates alone are talking about spending a couple hundred million dollars, then you have the party committees, and you're going to have all the House and Senate candidates and you're going to have various what are called the 527 groups that have come up in recent years. I mean there will be plenty of campaigning, and I'm not sure that people are going to sit and look at this decision as something that tips the balance in any way. It just, I think, leaves everybody a bit more free to do what they want to do.

Monica Trauzzi: Are there any outstanding issues left open by the ruling? Are we expecting more litigation to come down the pipeline?

Bradley Smith: Well, I think almost certainly so. Again, the ruling by the court, three of the judges, Kennedy, Scalia, and Alito, would have overturned the 60 day ban provision completely. But Chief Justice Roberts and Justice Alito, I guess it was Thomas, Scalia and Kennedy voted and Alito and Roberts did not. So they crafted this exception, but it's not a bright line. It's not here you're definitely in, here you're definitely out. Rather it will require a little bit of case-by-case adjudication until people get used to it. And I suspect that already some folks are beginning to think what can we do and what will we do if we get challenged in court? You know, they're already beginning to sort of plan the cases, either as intentional test cases or maybe more often just as here's what we want to do and we know we might get sued, but we think we're ready to deal with it and see if we fit in under the exception. So there'll be a lot of litigation to go. And it's important for people to understand too that this ruling does not overturn all of McCain-Feingold. Businesses, unions still cannot give money, soft money, to political parties, which was a provision of McCain-Feingold. There's a number of other regulations under McCain-Feingold that remain in effect. This was one part of a law and this is simply an esoplied exception that some groups will be able to take advantage of.

Monica Trauzzi: Any legislative impacts here? How might it affect Congress?

Bradley Smith: Well, it's tough to say in the short run. Obviously, if we mean will it affect Congress in the sense of groups will be able to run ads talking about congressmen and issues. I think that's important. And I think that does change congressional behavior at times. I think that is why people often run those ads. But I don't think that we're likely to see any kind of congressional response directly on the campaign finance front, at least not before 2008. Frankly, the general sense I have is that the attitude here is one of exhaustion. I mean McCain-Feingold has, even before this ruling, has pretty much obviously failed. I mean there's still many, many ads. The era of McCain-Feingold is the era of Jack Abramoff and Duke Cunningham and $90,000 in a congressman's refrigerator. There's still record levels of spending, so it's sort of whatever you thought you were going to get out of McCain-Feingold I think it's very difficult for anybody to say that they actually got it. And as a result, I think, like I say, there's a general sense of sort of exhaustion here. I don't think there's going to be a real strong effort to regulate further in the field, at least not in this cycle of campaigns that are well underway. It could be down the line there'll be something, but not in the short term.

Monica Trauzzi: All right. We're going to end it right there. Thanks for coming on the show.

Bradley Smith: Thank you.

Monica Trauzzi: This is OnPoint. I'm Monica Trauzzi. Thanks for watching.

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