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'Issue Ads' and Common Sense

Publication Date: 
May 01, 2007
The Atlantic Online: National Journal
Stuart Taylor

In this column, Stuart Taylor says the "Supreme Court justices seemed to be missing the point during oral arguments over curbs that the McCain-Feingold campaign finance law imposes on free speech" and suggests:

Instead of this sterile debate over how much electioneering can be slipped between the lines of an issue ad, the justices should resolve this case as suggested by Kathleen Sullivan, a distinguished professor and former dean of Stanford Law School, in a brilliantly logical friend-of-the-court brief on behalf of Wisconsin Right to Life.

"Nonprofit advocacy groups funded by individuals are readily distinguishable from for-profit corporations funded by general treasuries," Sullivan's brief explains. And "speech by nonprofit advocacy groups on behalf of their members does not 'corrupt' candidates or 'distort' the political marketplace. Instead, it is Section 203 [of McCain-Feingold] that distorts, leaving wealthy individuals and corporate media conglomerates [which the law exempts] unfettered in their pre-election broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have banded together in grassroots groups to express their views."

Exactly right. Sullivan's brief also shows in compelling detail how McCain-Feingold "effectively forecloses ... small, nonprofit, grassroots advocacy groups altogether from running pre-election broadcast issue ads." The safety valves touted by regulators are largely illusory. Although nonprofits that meet certain FEC criteria are exempt from regulation, those criteria are virtually impossible to meet; the "daunting legal, financial, and administrative difficulties of forming a PAC are prohibitive for most small grassroots advocacy groups"; and suing for advance judicial approval is "expensive, protracted, and uncertain."

Sullivan's brief also quotes a book that seems to support her approach: "Active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials."

The book is Active Liberty. The author is Stephen Breyer.