You know that saying, “If it walks like a duck, it probably is one”? Here’s the best way to think about today’s oral argument in FEC and John McCain v. Wisconsin Right to Life: Approximately half the court feels that a political advertisement that opens with an unflattering picture of Candidate X, details her views on Issue Y in ominous tones (often to the sound of drumbeats and slamming prison doors), and then urges you to call Candidate X and “tell her how you feel” will probably affect an upcoming election. And so if it walks like a duck, it should be given the duck treatment and banned under a provision of the 2002 McCain-Feingold campaign-finance law that tried to get big money out of the business of attack ads.
On the other hand, approximately the other half of the court—likely the larger half—thinks the aforesaid ad may or may not be a duck; that there’s no meaningful test for duck-ness; that it’s not for the courts to define which duck is in fact a duck and which is a swan; and that sometimes something can walk and talk like a duck but in fact be protected free speech. Perhaps not surprisingly, when you frame it this way, Justice Antonin Scalia is one of the staunchest defenders of the duck.
The provision of the McCain-Feingold campaign-finance law in question today bars corporations and labor unions from spending their treasury funds on ads that name specific candidates within 30 days of a primary or 60 days of a federal election. Back in 2003, when the Supreme Court passed judgment on McCain-Feingold as a whole, it held, in McConnell v. FEC, that this provision was not unconstitutional on its face—that is to say across the board—but left open a window for a group to come along and challenge the law as it applies in a specific case.
The group that brought that case is Wisconsin Right to Life, an anti-abortion-rights group that ran three radio and TV spots in 2004 criticizing a “group of senators” for filibustering President Bush’s judicial selections. The ad urged folks to “contact senators Kohl and Feingold and tell them to oppose the filibuster.” And while the ad never mentioned that Feingold was running for re-election, it did send listeners to a Web site that condemned him by name. The FEC said the ads ran afoul of the electioneering provision. The parties went up and down the court system (including the U.S. Supreme Court last year) before landing at the U.S. District Court for the District of Columbia, which determined in December that the McCain-Feingold electioneering provisions were unconstitutional as applied to WRTL.
Still with me? The high court just has to figure out whether the WRTL ads are a duck or esteemed political speech that just walks like one.
It also has to keep track of some strange bedfellows. The NRA and the ACLU and the Alliance for Justice all side with WRTL, the pro-life group. A brief for the conservative Family Research Council quotes Justice Stephen Breyer’s book Active Liberty, arguing that to chill grassroots speech in the period just before an election “gravely undermines” the liberty and democracy for which America is celebrated.
Solicitor General Paul Clement has the first 20 minutes to defend the law, and he continues his recent pattern of being just this side of sassy about it. He explains that the WRTL ads at issue here are functionally indistinguishable from ads the court agreed to regulate in McConnell v. FEC, ads that “condemned Jane Doe’s record on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you think.’ “
Scalia gets right to the point: “Well, maybe we were wrong last time.”
Chief Justice John Roberts asks how the court is supposed to figure out whether the Wisconsin filibuster ads are indeed “typical” of these sham-issue ads. Clement answers that this is a classic attack ad that “looks like an issue ad but is the functional equivalent of express advocacy.” In other words, these commercials don’t neutrally frame an issue but exhort the audience to do something about the person responsible.
Clement says it’s crazy to say that issues like the filibuster spontaneously arise in the “blackout periods” just before elections. They are always around, so why do the ads need to air in the weeks before election?
Justice Anthony Kennedy replies that “the public only tunes into political dialogue in close elections.” Scalia and Kennedy both opine that maybe these ads aren’t intended to influence voters but to pressure the candidates to change their ways. Clement disagrees. When Scalia asks how Clement knows that isn’t the case, the SG replies with a rather sarcastic, “Well, I don’t know, the fact that by the time they ran these ads, Senator Feingold voted 20 times out of 20 to filibuster suggests to me that they probably concluded that the best way to get a Wisconsin senator who wouldn’t filibuster was to change senators, not to change Senator Feingold’s mind.”
Something about this has the effect of shooting Scalia out of a cannon. “This is the First Amendment!” he bellows. “We don’t make people guess whether their speech is going to be allowed by Big Brother or not!”
Former Solicitor General Seth Waxman has 10 minutes to defend the statute on John McCain’s behalf. He proposes a test that would simply measure whether an ad has an “electioneering purpose.” If it does, it’s a duck. Roberts is unimpressed. “Do we usually place the burden, when we’re applying strict scrutiny, on the challenger to prove that they’re allowed to speak?” he asks. Rhetorically, of course. Justice Samuel Alito, who again has the power to flip O’Connor’s vote from McConnell, wonders what the useful empirical test would be, and why it is that “so many advocacy groups say this law is impractical?”
James Bopp represents WRTL, and he seems to enrage justices Breyer and David Souter almost as effectively as his opponents infuriated Scalia and Roberts. Bopp keeps using the words “grassroots lobbying ads,” and so Breyer jumps him. He wants to know what to make of the WRTL Web site—the one referred to in the ads that don’t stop at politely saying, “Phone the senator.” The Web site more candidly says, “Defeat him, defeat him, defeat him!” Breyer cries. “Sounds like they have defeat in mind.” He starts jamming Bopp on whether he read the “1,000-page opinion below,” which he says took him a whole week to read. Finally, Breyer asks whether Bopp wants the whole provision struck down. Scalia reminds Bopp that he does. Bopp says that if “there is no workable test,” then heck yeah, strike it down.
Souter tells Bopp that if the test is merely to look at the text—the “four corners” of the ad—then it would inevitably “ignore the context. How can we tell what something means without the context?” He goes on: “You knew the position of Senator Feingold in these advertisements, and the people in your state knew.”
Bopp replies that “there is absolutely no evidence that anyone in Wisconsin knew [Feingold’s] position on the filibuster.” Souter explodes: “Because they’re dumb?”
Bopp replies that polls show that the majority of Americans don’t even know who the vice president is. At which Souter sneers (sneers—I swear it): “So your position is that we ignore context because the voters aren’t smart enough to have a context?” Kennedy makes a plea for considering context too, but it appears to be chiefly an effort to get the words “biker bar” into the transcript.
Justice John Paul Stevens asks Bopp whether he is seriously trying to convince the court that the purpose of the WRTL ads was to get Feingold to “change his position on filibusters.” Bopp says yes. And that, moreover, Sen. Herb Kohl did change his position on filibusters. “At least people should have the opportunity to engage in grassroots lobbying,” he adds.
“Is that called democracy?” intones Kennedy. Sounding like Thomas Jefferson at debate camp. Bopp replies that it is, indeed, democracy.
Bopp offers an alternative test for an illegitimate issue ad; essentially whether it contains some of the magic words that would clearly turn it into electioneering. Stevens gets Bopp to stumble when he asks what happens when the permissible issue ad steers viewers to a Web site that uses those “magic words”? Bopp isn’t certain.
Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn’t look like Clement’s snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer’s dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season.