Well, Jim Bopp, Rich Coleson and the James Madison Center have finally done it; they’ve wrestled the FEC to the ground in the latest round of grassroots lobbying ads. In just a few weeks the FEC has agreed not to choose district courts as the place to wrestle further over the contours of FEC v. Wisconsin Right to Life (WRTL II), or the arguably broader set of ads in the related case, Christian Civic League of Maine v. FEC (CCLM). The FEC has announced it will open a rulemaking, read the Supreme Court opinion for itself, and shape the contours of a conforming exception to BCRA’s electioneering communications provisions.
To keep the exception from becoming impermissibly narrow, Bopp asks the FEC to simply promulgate the test articulated by the Supreme Court: “that a communication (that would otherwise qualify as an electioneering communication) may be banned ‘only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.’” Bopp urges the Commission to provide safe-harbor examples of genuine issue ads, including those at issue in CCLM and WRTL II.
If history is any guide, the reformers will say that the ads run by the Christian Civic League or WRTL must mark the outer limits of the exception: the Opinion provides no more. We can expect that question to be the center of much debate among panels of experts before the FEC. Before it’s all over, the Commissioners may wish they’d sent their litigators to trial.
Bopp also asks the FEC “to repeal its alternate definition of express advocacy because several courts have already declared the definition unconstitutional and the High Court’s decision in the WRTL II case makes it absolutely clear that those decisions were correct.”
Bopp is correct in saying that neither McConnell nor WRTL II altered express advocacy. The Court makes the distinction several times. Chief Justice Roberts wrote that, “[r]esolving [WRTL II] requires us first to determine whether the speech at issue is the ‘functional equivalent’ of speech expressly advocating the election or defeat of a candidate for federal office, or instead a ‘genuine issue a[d].’” (Slip Op. at 2). The phrase “functional equivalent of express advocacy” necessarily implies, first, that there is a concept “express advocacy,” and, second, that its “functional equivalent” is not it.
Bopp is equally correct that nothing in WRTL II or McConnell disturbs the rulings of several federal courts that FEC’s part (b) definition of express advocacy is unconstitutional. Congress grafted the electioneering communications provisions onto FECA, adding to, not altering, FECA’s structure. This means the Court could not reach and, therefore, could not have disturbed its earlier judicial interpretations of “expenditure” in deciding the facial validity of electioneering communications in McConnell. And that means the FEC was incorrect to conclude that the McConnell opinion freed the FEC to widen its regulatory interpretation of “expenditure.” As we have said here, BCRA specifically prohibited the McConnell Court from reaching the validity of 100.22(b), thus undermining further any FEC assertions that McConnell removes the constitutional problems associated with resuscitating part (b).
Bopp understands this all too well, which is why he uses the word “repeal” twice in one paragraph, and never suggests that amending part (b) will do; never pretends that “functional equivalence” is somehow a subset of “express advocacy" and not a separate construct.
But the thought of repealing part (b) will cause heartburn among Commissioners who have built a political committee rulemaking around a stretching of the term “solicitation” and a political committee enforcement regime on a resuscitating of the express-advocacy definition in part (b). Commissioners eager to preserve a spate of recent FEC precedent in political-committee enforcement actions, like Swift Boat Veterans for Truth and MoveOn.org, may give Bopp only half of what he asks for.
But if WRTL II proves anything it is that Jim Bopp is a patient man. So long as this Court retains its working majority on issues of speech, the FEC’s part (b) definition of express advocacy will fall; it’s not a matter of if, but when. The FEC can recognize that reality and repeal part (b) now, or Bopp will ask the Court to do it later.
