In a recent post, I suggested that the WRTL case could have major implications for campaign finance law (statements I’ve repeated in the press: here and here.) I argued in my post as follows: “The dissent rightfully points out the inconsistency of [the lower court majority’s] ‘see no evil’ approach with how the Supreme Court decided McConnell. McConnell was a case that said to look behind the sham issue ads and see what is the functional equivalent of express advocacy. This test is one that closes eyes to political realities. It will allow many opportunities for circumvention by corporations and unions—and I predict eventually non-disclosure as well. (That will likely be Jim Bopp’s next argument should he prevail at the Supreme Court.)”
Bob Bauer responded this week, arguing that “[i]t is a mistake to assume that the Court might seize on WRTL with some plan to weaken the very foundation of campaign finance regulation.” He further argues that the provision challenged in the case, the “electioneering communications provision” is somehow “apart” from earlier Congressional regulation of campaign financing and “always one of the more tenuous provisions of the new law.” I think Bob is wrong on both counts.
First, the case could well have major implications. I am not surprised that Bob, who is a forceful and articulate critic of campaign finance reform, takes this position; he has every incentive to minimize the importance of this case. Minimizing the case’s importance means it might slip under the radar, with the press reporting the Supreme Court’s decision (if it affirms) as a “minor” adjustment to McConnell, and then the savvy Washington election lawyers driving a mack truck through any new “as applied” exemption.
What’s at stake is not whether an ideological group like the anti-abortion group WRTL will be able to engage in “grassroots advocacy.” That’s Jim Bopp’s sound bite, but not the real story behind the case. The real story behind the case is whether major corporate and union money will be available to run sham issue ads that seek to influence the outcome of federal elections. In other words, if WRTL succeeds in the Supreme Court, it could well bring us full circle to the situation before McConnell: an easily circumvented campaign finance test shutting out only those corporations and unions that are not smart enough to design ads that are fully intended to influence the outcome of elections but avoiding “magic words” (or indicia under a decontextualized five-part test) separating issue advocacy from electioneering. The McCain et al.jurisdictional statement makes the point beautifully:

The analysis by the majority of the three-judge court in this case turns the McConnell reasoning on its head. The majority would introduce a standard that would, like the failed magic words test, require an advertisement’s purpose to be divined solely from its text and without regard to the relevant context. It would permit just the type of evasion that Congress intended to foreclose and would allow corporations to circumvent the law by eschewing forbidden “magic words” while still conveying a clear campaign message in light of the prevailing context. It was precisely because such an approach was unworkable–and because the “vast majority” of facially benign “issue ads” were “intended to influence the voters” and have that effect–that this Court upheld the facial validity of Section 203…
As the Supreme Court recognized in McConnell, Congress’s compelling interest in regulating use of corporate and union general treasury funds to influence federal elections extends to those advertisements that are the “functional equivalent of express advocacy.” McConnell, 540 U.S. at 206. Functional equivalence, of course, requires analysis of how advertisements actually function in the real world, an inquiry that the court below declined to undertake. Congress’s interest in regulating the flow of corporate and union dollars to efforts to influence federal elections is no less compelling in cases where the nature of the advertisement is correctly understood in light of the overall context in which the ad ran than in cases in which reference to the text of the ad alone is sufficient. The advertisements at issue in this case, even if read as not attacking Senator Feingold on their face, when understood in context, are precisely the types of advertisements that Congress addressed in Section 203 of BCRA and that this Court considered in McConnell.

Bob is equally wrong on his second point. The electioneering communications provision was a new provision to be sure, but it was a loophole closing provision meant to enforce the longstanding limit on independent corporate spending on elections–limits that go back to the Tillman Act.
I agree that there are some circumstances where a narrow “as applied” exemption should come into play to the electioneering communications provision (and said so back in my analysis of McConnell (see page 66)). But the approach of the lower court, if followed by the Supreme Court, would create an exception that swallows the rule. Bob’s clients would likely be happy with that. But it would take us back to the pre-McConnell days or worse.
UPDATE: Bob Bauer responds. Again, if I have time, I hope to continue this discussion with a further reply.