I am participating in a national conference call right now with election lawyers and professors, and am concluding that the consensus view is that the Supreme Court’s decision today in Wisconsin Right to Life does gut McCain-Feingold, but also establishes a new standard for regulated electorial speech: express advocacy of a candidate PLUS words about candidate character/qualifications/fitness for office. And interestingly this is an EXPANSION of the old Buckley v. Valeo case. Nevertheless, the sum is less regulation of speech in elections. If a policy-oriented communication from a nonprofit, corporation or union avoids the types of words mentioned above, it can mention candidates and be outside the realm of FEC/FPPC regulation. This is a big win for the First Amendment, because McCain-Feingold banned such communications based on timing, regardless of content. Thus, the new analysis is content-based, ad-by-ad, so political consultants: careful review of text is critical.
