127 S. Ct. 2652 (2007), argued 25 Apr. 2007, decided 25 June 2007 by vote of 5 to 4; Roberts for the Court, joined in Parts I and II by Scalia, Kennedy, Thomas, and Alito; Roberts, joined by Alito, delivered an opinion in Parts III and IV; Alito filed a concurring opinion; Scalia, joined by Kennedy and Thomas, concurred in part and concurred in the judgment; Souter, joined by Stevens, Ginsburg, and Breyer, dissented. In McConnell v. Federal Election Commission (2003), the Supreme Court upheld the essential features of the Bipartisan Campaign Reform Act of 2002 (BCRA, or “McCain-Feingold,” after its two major sponsors). This ruling included the approval, against a First Amendment facial challenge, of major new restrictions on campaign advertising. BCRA's Section 203 made it a federal crime for a corporation, union, or nonprofit advocacy group to engage in “electioneering communication” that refers to a candidate for federal office within sixty days of a general election or thirty days of a primary.
Wisconsin Right to Life (WRTL) raised an “as-applied” challenge to BCRA's restrictions on its ads during the thirty-day blackout period before the 2004 Wisconsin primary. The ads urged listeners to contact Wisconsin's senators to oppose a filibuster and allow a vote on President George W. Bush's judicial nominees. Senator Russ Feingold was running for reelection, and the mention of his name in the ads would therefore trigger a BCRA violation. Asserting a First Amendment right to run these ads, WRTL sued the Federal Election Commission (FEC). The Court ruled in support of WRTL's First Amendment claim. As in previous campaign reform cases, dating back to Buckley v. Valeo (1976), the usual fractured opinions prevailed in this case.
Because of these divided opinions, Chief Justice John Roberts was only able to deliver an opinion of the Court stating that the issue was not moot, and three justices parted company with him on the reasons for the ruling that Section 203 was unconstitutional as applied to WRTL's “issue ads.” Roberts attempted to carve out room for First Amendment protection for these ads, while Justice Antonin Scalia argued in a concurrence that McConnell should have been directly overruled because no test could avoid vagueness that chills speech and also conform to McConnell. The chief justice, Scalia contended, in effect had overruled McConnell. Justice David H. Souter, in dissent, argued that WRTL's ads fell within the prohibited category articulated in McConnell: express advocacy or “the functional equivalent of express advocacy.”
Roberts, in the section of his opinion that garnered the approval only of Justice Samuel A. Alito, Jr., articulated an objective test for as-applied challenges to Section 203 that would “give the benefit of the doubt to speech, not censorship” (p. 2674), while not reconsidering McConnell. Under the test that he proposed, “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (p. 2667). Roberts found WRTL's ads “plainly not the equivalent of express advocacy,” thus falling outside of BCRA's regulatory reach.