Federal Election Commission v. Wisconsin Right to Life, Inc.
The Supreme Court ruled that a federal law banning corporate-funded "electioneering communications" close to an election could not be applied to Wisconsin Right to Life's ads urging voters to contact two senators about judicial filibusters, because the ads were genuine issue ads rather than disguised campaign ads.
The decision significantly narrowed how the campaign-finance law could be enforced against issue advertising, even though the Court said it was not formally overturning its earlier decision upholding that law, a characterization four dissenting justices strongly disputed.
“Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
The Court's guiding principle for resolving doubtful cases about whether an ad counts as regulable campaign speech.
How it got here: A federal three-judge district court held the law unconstitutional as applied to WRTL's ads after the Supreme Court had earlier ruled such as-applied challenges were available; the FEC and intervenor senators appealed directly to the Supreme Court.
The Case in Depth
What happened
Wisconsin Right to Life (WRTL), a nonprofit advocacy corporation partly funded by corporate donations, ran radio and TV ads urging listeners to contact Wisconsin Senators Feingold and Kohl and tell them to oppose Senate filibusters of federal judicial nominees. Federal law banned corporations from paying for such candidate-referencing broadcast ads with general treasury funds in the weeks before an election, and WRTL's ads fell within that blackout period tied to Feingold's re-election campaign.
The question before the Court
Could a nonprofit group's ads urging voters to contact their senators about judicial-nominee filibusters be banned as election ads just before an election?
The Court's answer
Yes — the Court ruled that Wisconsin Right to Life's ads could not be banned, because they were genuine issue ads rather than the equivalent of telling voters to vote for or against a candidate. The Court adopted a new, objective test: a broadcast ad naming a candidate can be treated as regulable campaign speech only if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against that candidate.
Applying that test, the ads discussed a pending Senate filibuster fight, urged listeners to contact their senators, and never mentioned the election, a candidate's fitness for office, or anything resembling a campaign appeal. Because the ads didn't meet that narrow standard, the government's interests in preventing corruption or limiting concentrated corporate wealth in politics weren't strong enough to justify banning them, so the law could not constitutionally be enforced against these particular ads.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Nonprofit advocacy groups, corporations, and unions gained more room to run ads mentioning federal candidates close to elections, so long as the ads focus on issues rather than telling voters how to vote. Campaign regulators and future litigants must now apply a fact-specific "no reasonable interpretation other than" test rather than a broader functional-equivalence standard.
What changes now
The ruling is a final decision on the merits, affirming that the challenged provision cannot be enforced against WRTL's specific ads. Going forward, courts evaluating similar as-applied challenges to the electioneering-communication ban must apply the new content-based test rather than looking at an ad's context or the speaker's history. The law itself remains on the books and can still be applied to ads that more clearly amount to express campaign advocacy.
What this does not decide
The Court said it was not revisiting its earlier ruling that the law is constitutional on its face, and it left standing the rule that express campaign ads or their functional equivalent can still be banned. The dissent argued the decision effectively overruled that earlier precedent despite the majority's disclaimer, but the majority's stated holding is limited to these specific ads.
Concurrences and dissents
Concurrence — Justice Alito
Justice Alito joined the main opinion but wrote separately to stress that it was unnecessary to decide whether the law was unconstitutional on its face, only that it could not be applied to these specific ads. He signaled openness to revisiting the earlier precedent fully if the new as-applied standard later proves to chill political speech.
Concurrence — Justice Scalia
Justice Scalia agreed with the outcome but argued the Court should have gone further and formally overruled the part of the earlier precedent upholding the law, because he believed no clear, workable legal test could distinguish protected issue ads from banned campaign ads without contradicting that precedent. He viewed the majority's approach as effectively overruling the earlier case while pretending not to, calling this 'judicial obfuscation.'
Dissent — Justice Souter
Justice Souter argued the majority effectively and unjustifiably overruled the Court's earlier decision upholding the law, despite claiming otherwise. He contended the ads were materially identical to examples the Court previously said could be regulated, and that a century of legislative and judicial recognition of the corrupting influence of concentrated corporate and union money justified upholding the law as applied here.
How the Court got there
The legal reasoning, step by step
- The Court applied strict scrutiny, the toughest constitutional test, because the law burdened political speech; the government had to show a compelling reason and a narrowly tailored law to justify banning the ads.
- The Court rejected using an ad's intent or actual effect on voters as the test for whether it counts as the equivalent of express campaign advocacy, reasoning that focusing on subjective intent would chill speech and require costly, uncertain litigation.
- Instead, the Court adopted an objective, content-based test: an ad can be treated as the functional equivalent of express advocacy only if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.
- Measured against that test, WRTL's ads discussed a pending legislative issue, urged the public to contact officials about it, and contained no mention of an election, candidacy, or a candidate's fitness for office, so they qualified as genuine issue ads.
- Because the ads were not express advocacy or its equivalent, the Court held that the government's recognized interests in preventing corruption or countering concentrated corporate wealth did not extend far enough to justify banning them.
Doctrinal impact
Cases affected by this decision
Limits McConnell v. Federal Election Comm'n (540 U. S. 93)
The Court said it was not disturbing McConnell's facial ruling but sharply narrowed how the law could be applied to specific issue ads.
Reaffirms Buckley v. Valeo (424 U. S. 1)
The Court relied on Buckley's rejection of vague intent-and-effect tests to justify its objective, content-focused standard.