Two Justices (in this case C.J. Roberts and Justice Alito) announce the controlling test on a constitutional issue (in this case which types of broadcast ads mentioning candidates may be paid for with corporate or union treasury funds). The seven other Justices on the Court say that under the test, a certain type of ad mentioned in the earlier FEC v. McConnell case (the so-called “Jane Doe” ad) would be entitled to an exemption. The two Justices announcing the test disagree. If you are a lower court judge deciding an issue like the one involving the Jane Doe ad, do you follow the two or the seven?
I recently posted this query on the election law listserv and got some interesting responses (follow this thread) but would like to hear others’ reactions as well, especially if the issue has come up in other contexts. Bob Pushaw suggested to me it may present a kind of collective choice problem that the work of Max Stearns could elucidate. I’ll have to look down that road. In any case, here it the full post:
Under the WRTL principal opinion (C.J. Roberts and Justice Alito) the only ads that may not be paid for with corporate or union treasury funds are those that expressly advocate the election or defeat of candidates for office and those that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
Imagine that a lower court judge is asked whether the following advertisement is subject to the as-applied exemption: “Jane Doe wants to be your president, but Jane Doe’s position on global warming is evil. Don’t let her ruin the world.” Should the lower court grant an exemption?
As I explain in my new paper on WRTL, “Beyond Incoherence: The Supreme Court’s Deregulatory Turn in FEC v. Wisconsin Right to Life, there’s a strong argument to be made that under the principal opinion’s “no reasonable interpretation” test, the lower court judge should grant the exemption because there is no express advocacy and the ad is subject to a reasonable interpretation (though not the best interpretation, I’d argue) that the ad is about the “issue” of global warming. But the issue is somewhat murky because the ad arguably includes “condemnatory” language. As I explain in my paper at page 30 (footnotes omitted):

The principal opinion sought to distinguish WRTL’s ads from a hypothetical Jane Doe ad mentioned in McConnell that condemned Jane Doe’s position on an issue and urged voters to call Doe to tell her what they think about her position: “But [the Jane Doe] ad ‘condemned Jane Doe’s record on a particular issue.’ WRTL’s ads do not do so; they instead take a position on the filibuster issue and exhort constituents to contact Senators Feingold and Kohl to advance that position. Indeed, one would not even know from the ads whether Senator Feingold supported or opposed filibusters.” The footnote build upon the principal opinion’s statement that WRTL’s ads are not like express advocacy because they “focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials on the issue.” Further, they ‘do not mention an election candidacy, political party or challenger[] and they do not take a position on a candidate’s character, qualifications, or fitness for office.”

From this language in the principal opinion, it is not clear to me that Chief Justice Roberts and Justice Alito would say that the Jane Doe ad gets the exemption. But the 7 other Justices on the Supreme Court say that under the principal opinion’s test, the Jane Doe ad would be entitled to an exemption: WRTL, 127 S.Ct. at 2683 n.7 (Scalia, J., concurring in the judgment) (“While its coverage is not entirely clear, [the principal opinion’s test] would apparently protect even McConnell’s paradigmatic example of the functional equivalent of express advocacy–the so-called ‘Jane Doe ad'”; id. at 2699 (Souter, J., dissenting) (“If it is now unconstitutional to restrict WRTL’s Feingold ads, then it follows that s 203 can no longer be applied constitutionally to McConnell’s Jane Doe paradigm.”). Indeed, Justice Scalia adds that the principal opinion’s test “at least arguably protects the most ‘striking’ example of a so-called sham issue ad in the McConnell record, the notorious ‘Yellowtail ad,’ which accused Bill Yellowtail of striking his wife and then urged listeners to call him and ‘”[t]ell him to support family values.'”
So what is the lower court to do? Follow what the principal opinion says about condemnatory ads or follow what the majority of the Court says the principal opinion’s test means?
I dance around this issue in my current draft, but I’d like to address it head-on in the next iteration.