In the wake of the recent complex decision by the U.S. Supreme Court (FEC v. Wisconsin Right to Life (WRTL), June 25, 2007) to weaken the Bipartisan Campaign Reform Act (BCRA), advocates of Clean Elections campaign reform may be wondering how the ruling affects the policy that is the law in Arizona, Maine, and five other states and two cities. The good news, according to a number of expert legal analyses, is that full public financing systems not only remain intact-they become the most effective option likely to withstand legal challenges.

What does the Supreme Court ruling do? A divided court ruled 5-4 that the ban on advertisements funded by corporate and union general treasury funds in the final days before the election cannot be enforced. The exception is if the ad is "the functional equivalent of express advocacy"; this standard is met only if the ad is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidates." This tough-and somewhat unclear-standard is much harder to meet than that set out in the Bipartisan Campaign Reform Act (BCRA). For example, as proscribed in this decision, courts largely cannot take into consideration contextual evidence that would help determine whether the ad was intended to influence an election.

Why was an issue ad ban important? The Supreme Court eviscerated a core achievement of BCRA, which was to regulate "sham" issue ads. These were the ads that pretended to be about issues but are really attack ads against a particular candidate. Spending on these types of ads had skyrocketed after a 1986 ruling, FEC v. Mass. Citizens for Life (MCFL), that had allowed such ads so long as they avoided a bright line test in advocating the election or defeat of a candidate, using magic words such as "vote for" or "vote against." That said, if you've noticed that you still saw plenty of sham issue ads on your TV come election time, it's important to note that the issue ad ban in BCRA did not stop individuals or certain types of organizations from funding such issue ads. Corporations and unions are also permitted to run ads if they use funds that are legal to spend in federal elections, namely PAC funds, to pay for those ads promoting and attacking candidates that run close to an election.

What does the ruling say about Clean Elections campaign reform? The recent Supreme Court ruling does not address full public financing of elections. However, in the face of a conservative court that is likely to make future rulings weakening existing laws, Clean Elections remains the most robust option for campaign reform. This is because unlike traditional campaign finance reforms, which establish bans and restrictions that the courts could view as limiting political speech protected by the Constitution, the voluntary Clean Elections programs level the playing field by providing resources to candidates who might not otherwise have access. They do this by giving candidates who demonstrate popular support through collecting a set number of small contributions funding to run a competitive campaign, even if faced with a well-financed, privately funded opponent. In other words, Clean Elections is about expanding opportunities rather than restricting the ways that money can be used. To date the courts largely have concurred that public financing promotes speech.

But what about the matching funds provisions for issue ads in public financing programs? The recent Supreme Court ruling will most directly affect state public financing laws that include matching provisions that supply candidates with matching funds if they are targeted by an issue advertisement. The potential problem here is whether or not the courts, in the aftermath of WRTL, will allow the disclosure of spending on such ads that is necessary to make matching provisions functional. Some opponents of campaign reform will argue there should be no disclosure of the newly permitted corporate and union-funded ads. However, legal experts point out that the courts generally have been more open to disclosure than they are to bans. The matching funds laws in effect also require only minimal disclosure, since all that's necessary is to know how much money has been spent over all, rather than detailed itemization of contributions and expenditures. In addition, opponents are likely to resurrect the failed argument that such matching provisions chill speech. Their reasoning is that someone who is about to make independent expenditures attacking a candidate will be less likely to do so if their publicly-financed target will receive Clean Election matching funds as a result. The argument has failed to impress courts in the past. There is a right to speech, but "no right to speak free from response," as Senior Circuit Judge Frank Coffin wrote in Daggett v. Commission on Governmental Ethics and Election Practices, 205 F.3d 445, 464 (1st Cir. 1999). Reform advocates can expect to see challenges on public funding matching provisions and will need to be ready.