Yesterday’s U.S. Supreme Court decision in FEC v. Wisconsin Right to Life is of special importance to those of us in Wisconsin, since we have watched the case unfold before our eyes since its inception. As you’ve probably heard by now, the Court, in a 5-4 vote, struck down a portion of the McCain-Feingold campaign finance law which prohibited so-called “issue advocacy” by unregistered groups in a period of 60 days before a general election. Wisconsin Right to Life had run advertisements critical of Senators Russ Feingold and Herb Kohl for their perceived role in holding up judicial appointments, but these ads were deemed to be illegal under McCain-Feingold, despite not advocating for the electoral defeat of either. Yesterday’s decision upheld WRTL’s right to run the ads, as the Court determined they were not “express advocacy.”
The culture of speech restriction with regard to campaigns has been prevalent in Wisconsin for some time, and produces some fairly odd applications of the law. This was demonstrated during last November’s elections, when the Wisconsin Democracy Campaign (a pro-campaign finance reform group) actually filed a complaint to bar a Catholic diocese from urging its parishoners to support a constitutional amendment to ban gay marriage. (Church Accused of Illegal Lobbying, Madison Capital Times, Oct. 18, 2006) At the same time they were attempting to use state law to block the Catholic Church’s right to support the constitutional amendment, the WDC was actually publicly lobbying against the amendment – yet they didn’t see their own activities as “express advocacy.”
So while it is clear yesterday’s decision represented a marginal victory for free speech rights at the federal level, there are steps states can take to ensure political speech isn’t muzzled come election time. When churches break the law by teaching their beliefs, it should alert states to dangerous path campaign finance restrictions are taking us.
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