Protecting Free Speech in Electioneering Communications: FEC v. Wisconsin Right To Life

In June 2007, the United States Supreme Court ruled in FEC. v. Wisconsin Right To Life (“WRTL”), by a 5-4 decision, that section 203 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) was unconstitutional.  The Court’s majority, however, could not agree to why BCRA was unconstitutional.  The opinion by Chief Justice John Roberts held that there is a distinction between “issue advocacy” and “express advocacy” in the context of federal elections, and it was constitutionally impermissible for them to be lumped together.  The concurring opinion by Justice Scalia held section 203 never should have been upheld in McConnell v. FEC, and BCRA is facially unconstitutional.  The effect of the WRTL decision is that corporations and unions may now broadcast issue ads on television and radio using their general treasury funds in the days leading up to a federal primary or general election.