In its last week of the current term, the U.S. Supreme Court released a pair of disappointing decisions that afford less First Amendment protection to the words of a student protester than to the dollars spent to evade the ban on corporate interference in our elections.  Apparently, in the opinion of a majority of the justices, a banner unfurled during a school field trip poses a greater threat to our democracy than the infusion of millions of special interest dollars into next year’s and future presidential and congressional campaigns.

The 5 to 4 split decision in F.E.C. v. Wisconsin Right to Life strikes down an important provision of the four year old McCain-Feingold campaign finance law. 

Since President Theodore Roosevelt, corporations have been prohibited from spending money from their general revenues on elections.  Shareholder used to promote political viewpoints without explicit consent coupled with the fear of the corrupting influence of special interest money was enough for courts to uphold the ban for over a century.  To engage in elections, these entities are entitled to establish political action committees which, since the 1970s, have had to raise money according to certain rules like contribution limits and disclosure requirements.  The idea is to develop a set of rules that level the playing field for all who participate.

The problem with the ban on direct spending was that political consultants increasingly found ways around it.  Under the guise of so-called “issue ads” powerful interests would air commercials that avoided words and phrases like “vote for” or “vote against” a particular candidate. Ads ran during the final days of the election that clearly promoted or attacked a candidate but stopped short of using what were considered the “magic words.”  The ambiguity of the rules allowed for widespread abuses.

The McCain-Feingold law removed the loophole and the ambiguity.  The law established a bright line test that stated if you name a candidate in a broadcast ad within a narrow window before an election then the ad is presumed to be electioneering.  The provision did not ban views and opinions from being expressed, speakers would simply have to pay for the ads using the same fundraising rules that others followed.  It was a practical, effective and, until this week, constitutional solution.

The decision does not strike at the core of the campaign finance law.  It did not challenge the ban on soft money contributions to political parties.  Along with a decision issued last year striking down the state of Vermont’s campaign spending limits and raising (although only modestly) the constitutional threshold  for contribution limits, this court  has sent troubling signals about what it intends do in this area of the law.

The immediate impact of the recent decision is to open the floodgates to more special interest money in our elections. In place of clarity, they have adopted a case-by case standard to determine whether an ad is or is not electioneering -- a standard best described by former Justice Potter Stewart’s statement (made when trying to define pornography), “I can’t define it, but I’ll know it when I see it.” Given the current leanings of the Federal Election Commission, the reality is that they won’t see much and wealthy and powerful interests will gain another leg up on the rest of us in influencing elections and the elected.