Issue ads could be making a comeback due to the Supreme Court’s unusual decision on Monday to re-examine a contentious campaign finance law in its next term.

Interest groups and Congress have been arm-wrestling the issue of campaign finance for years, and the court’s decision Monday to re-argue the Citizens United v. FEC case in the following term represents a victory for corporations. That leaves the open the question of what qualifies as political communications and what is journalism.

The case dealt with whether a biting anti-Hillary feature-length documentary qualified as “electioneering communications.” The Federal Election Commission argued that the 90-minute documentary clearly was express advocacy domain, while Citizens United, a conservative non-profit advocacy group, argued the film was a journalistic effort and not a political communication.

The Federal District Court sided with the FEC and argued that the Citizens United film was rightfully banned as express advocacy, and therefore subject to provisions in the McCain–Feingold Act.

Instead of agreeing with that ruling, justices have asked lawyers to re-argue the case in September with a wider focus. Thomas Mann, a senior fellow on governance studies at the Brookings Institute and expert on campaign finance law, said that before the court dips its toes into deep political waters, the justices want a more thorough review of the constitutional issues involved. That makes it likely the court could rule to overturn aspects of campaign finance law.

“My best guess is that there is a majority on the court that is prepared to take very dramatic steps and reverse decades of law and constitutional interpretation,” Mann said. “They certainly could have ruled in a narrower sense on campaign spending, but it looks like they want to overturn laws that have been on the books since the 1940s.”

Mann says that given the way the Supreme Court is stacked, the chances of Citizens United v. FEC being overturned is “very high.”

“You’ve got three continuing members who have voted against Austin, and Roberts and Alito have opposed BCRA and other efforts at campaign finance regulation,” he said. “Reversing [Citizens United] would be consistent with the more incremental steps that the Roberts court has taken on campaign finance.”

Mann said that while the reversal of Citizens United would not necessarily open the can of worms on soft money issues, it does blur the line between express advocacy and issue advocacy ads. Given this shady distinction, he says, issue ads will be the political go-to tactic in the final stretch of upcoming election seasons.


Amy Harris is a frequent contributor to
Politics magazine.