FEC v. Wisconsin Right to Life, Inc. (WRTL) is the Supreme Court's latest attempt to extricate grassroots advocacy by nonprofit corporations from the morass of political broadcast restrictions under the Bipartisan Campaign Finance Reform Act (BCRA). As with the many cases preceding it, the standard pronounced by the Court in WRTL is deceptively straightforward: a political broadcast is an "electioneering communication" that may be proscribed "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court held this axiom true notwithstanding the identity of the advertisement's sponsor because "the corporate identity of a speaker does not strip corporations of all free speech rights [under the First Amendment]." The question the Court should have addressed is whether the nonprofit corporate identity of a speaker entitles such corporations to speech rights under the Petition Clause rather than the Free Speech Clause of the First Amendment.

The Framers thought that nonprofit corporations were entitled to exemptions based upon their status as nonprofits. During the First Congress, a nonprofit Quaker corporation seeking to abolish slavery led Congress to consider whether the First Amendment of the United States Constitution permitted the group to rely upon mass media and public opinion to effect grassroots advocacy through electoral pressure. Although Congress was deeply divided on the slavery question, Congress's failure to proscribe the Quakers' grassroots lobbying efforts suggests that they believed that the Petition Clause of the First Amendment protected the Quakers' actions because providing for nonprofit corporate political speech necessarily favored the general welfare of the United States...

 

Read the full article.