WASHINGTON - JUNE 25 - The Supreme Court decision today in FEC v. Wisconsin Right to Life (WRTL) represents a significant step backwards for the American people in the battle to protect against the corruption of our democracy.

Despite the decision, however, it is important to keep in mind that the court ruling in no way affects the ban on soft money in the Bipartisan Campaign Reform Act of 2002 (BCRA), which is the core provision of this statute.

Under the soft money ban, federal candidates and office holders are prohibited from raising and spending through their political parties, corrupting unlimited contributions from corporations, labor unions and wealthy individuals.

This core BCRA provision worked effectively in the last two federal elections to prevent candidates and parties from raising huge soft money contributions and it remains fully in place for the 2008 election.

Under the BCRA soft money ban, both parties have raised record amounts of hard money and have greatly increased their base of small donors, while eliminating the huge corrupting contributions that federal officeholders had been raising for their parties from corporations, labor unions and wealthy individuals.  According to the Center for Responsive Politics, the national political parties raised $1.3 billion for the 2006 congressional elections, and congressional candidates raised an additional $1.4 billion.

What today's Court decision does do, however, is once again allow corporations and labor unions to independently spend their corporate treasury funds and union dues on thinly-disguised campaign ads masquerading as grassroots lobbying ads.

Corporations and labor unions for decades have been prohibited from spending their treasury funds and union dues in connection with federal elections, a prohibition that has long been held constitutional. Instead, they are required to use PAC funds, which are voluntarily donated by individuals and subject to contribution limits, to make expenditures to influence federal elections.

The BCRA ''electioneering communications'' provision at issue in today's decision was enacted to stop widespread evasion of the longstanding ban on the use of corporate and labor union funds to influence federal elections. The evasion occurred when corporations and unions used treasury funds and union dues to pay for ads run close to an election that promoted or attacked candidates, but did not say ''vote for'' or ''vote against'' those candidates. The sponsors claimed the ads were ''issue ads'' and ''grassroots lobbying ads,'' but in reality they were thinly-disguised campaign ads.

The ''electioneering communications'' provision of BCRA closed this loophole by requiring corporations and labor unions to use PAC funds from individuals, not treasury funds or union dues, for any broadcast ads that referred to a federal candidate and were run within 60 days of a general election or 30 days of a primary election.

No ads were banned. The provision just required that corporations and labor unions use funds that are legal to spend in federal elections, namely PAC funds, to pay for ads promoting and attacking candidates and run close to an election.

With today's decision, the Court has opened the door again for corporations and unions to evade this critical anti-corruption statutory provision, just as they did prior to the enactment of BCRA.  Whether the door has been opened partially or completely remains to be seen.

While not expressly overturning the McConnell decision on ''electioneering communications,'' today's decision opens a major loophole in the statute for ''electioneering communications'' that pose as ''issue ads'' or ''grassroots lobbying'' ads.  The argument about ''grassroots lobbying'' ads accepted today by the Court was also made by the plaintiffs in the McConnell case. But the Court in McConnell correctly understood that such so-called lobbying ads run close to an election were usually thinly-disguised campaign ads.

Chief Justice Roberts, writing the controlling opinion in a 5 to 4 decision, states that an ad can be regulated as an ''electioneering communication'' only if it is the ''functional equivalent'' of express advocacy, and it meets that test ''only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.''

As Justice Souter, who was in the majority in the McConnell case, explains in his dissent in today's case, joined by Justices Stevens, Ginsburg and Breyer:

The principal opinion, in other words, simply inverts what we said in McConnell. While we left open the possibility of a ''genuine'' or ''pure'' issue ad that might not be open to regulation under § 203, we meant that an issue ad without campaign advocacy could escape the restriction.  The implication of the adjectives ''genuine'' and ''pure'' is unmistakable: if an ad is reasonably understood as going beyond a discussion of issues (that is, if it can be understood as electoral advocacy), then by definition it is not ''genuine'' or ''pure.''  But the principal opinion inexplicably wrings the opposite conclusion from those words: if an ad is susceptible to any ''reasonable interpretation other than as an appeal to vote for or against a specific candidate,'' then it must be a ''pure'' or ''genuine'' issue ad.  This stands McConnell on its head, and on this reasoning it is possible that even some ads with magic words could not be regulated.

With today's decision, an important anti-corruption provision held constitutional by the Supreme Court less than four years ago has been severly undermined.

Background

In 2004, the Wisconsin Right to Life, Inc. (WRTL), a non-profit corporation, sought to broadcast one television and two radio ads, which criticized a ''group of Senators'' for supporting filibusters of President Bush's judicial nominees.  The ads urged voters to contact Senators Feingold and Kohl and tell them to oppose the filibusters. Because WRTL wished to air the ads within 30 days of the primary election, and within 60 days the general election in which Senator Feingold was a candidate for re-election, the ads were ''electioneering communications'' as defined by BCRA, and WRTL was required to use its PAC funds, not its corporate funds, to pay for the ads.

WRTL brought a lawsuit to declare the law unconstitutional as applied to the three ads. The case was initially dismissed by a three-judge district court panel on the ground that the Supreme Court's decision in McConnell had foreclosed such ''as applied'' challenges. But in a decision issued last year, the Supreme Court held such challenges were permitted, and sent the case back to the lower court for a decision on the merits. The Supreme Court took no position on the merits of the as-applied challenge in its decision. In a decision issued last December, the three-judge district court panel, by a 2 to 1 vote, found the statute to be unconstitutional as applied to the three ads at issue. The court limited its review to the text of the ads, and concluded that the ads were ''genuine issue ads,'' not campaign ads, and thus could not be subject to the rules that apply to campaign ads. 

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