On Dec. 21, 2006, in a victory for grassroots lobbying rights, a federal court ruled that three radio ads Wisconsin Right to Life (WRTL) wished to broadcast in the months before the 2004 election should have been allowed because they did not expressly advocate election or defeat of a federal candidate. The 2-1 decision held that a campaign finance rule banning broadcasts referring to a federal candidate aired during the campaign is unconstitutional as applied to WRTL's lobbying ads, but limited its ruling to the facts of this case. The Federal Election Commission (FEC) and sponsors of the Bipartisan Campaign Reform Act of 2002 (BCRA) appealed to the U.S. Supreme Court and joined in WRTL's request to expedite the case.

WRTL's ads called for Sen. Russell Feingold (D-WI) to oppose judicial filibusters when the issue was before the Senate in the fall of 2004. Under BCRA, "electioneering communications," broadcasts that refer to federal candidates within 60 days of a general election or 30 days of a primary, cannot be paid for with corporate funds, including treasury funds of nonprofit organizations. In August 2004, WRTL filed a lawsuit challenging application of the electioneering communications rule to its ads as a violation of its First Amendment rights. Although the lower court ruled WRTL could not challenge the law, in January 2006, the Supreme Court overturned that decision, saying constitutional challenges could question application of the ban as applied to specific ads. The case was then sent back to the lower court to determine whether or not the ads in question were genuine grassroots lobbying communications that would not be subject to the rule.

Content not Context

The December ruling found that WRTL's three ads addressed a legitimate public policy issue, did not refer to the election, and did not contain language promoting or attacking a federal candidate, and therefore were not subject to the electioneering communications ban because they did not contain "express advocacy" opposing the re-election of Feingold. The court held that ads about a public policy issue that do not link the issue to a candidate/officeholder's fitness for office cannot be banned. The court said without a link, it is unclear if the ad was intended to have an impact on the election.

For that reason, the majority opinion said the court should limit its review to the specific words of the ads and not examine other factors to determine whether they were intended to influence the election. The court rejected the FEC's arguments that they should look beyond the content of the ad and consider the context and WRTL's intentions in airing it, since WRTL, a 501(c)(4) organization, had opposed Feingold's re-election. In rejecting any assumption that experts can decipher the impact of any ad on an election, the opinion states; "Indeed, to the untutored viewer's eye, the ads, on their face, neither reveal either Senator's thinking on the issue, nor reference Senator Feingold's upcoming election contest. Therefore, plaintiff contends that these ads are a textbook example of genuine issue ads that are neither express advocacy nor its functional equivalent."

The court refused to carve out a general exemption for grassroots lobbying ads, saying exceptions can only be made by the courts on a case-by-case basis. However, it is likely the Supreme Court will rule on the issue before the next blackout, which is Dec. 15, 30 days before the Iowa presidential caucus. The FEC and congressional sponsors of BCRA have appealed to the Supreme Court, and on Dec. 29, 2006, WRTL filed a motion to expedite consideration of the FEC's appeal. U.S. Solicitor General Paul D. Clement's response on behalf of the FEC also urged the court to hear the case during its current term. The court has set a case conference for Jan. 19.

The issue has been hotly debated since the law passed in 2002, and those on both sides of the issue hope the Supreme Court will put the controversy to rest. This most recent ruling drew responses from critics of the law as well as reform groups that want to limit use of soft money in campaigns. Election law expert Bob Bauer praised the decision on his blog, saying the court was right to limit its review to the content of the ad itself and refuse to consider the context. Otherwise, "the proceedings become an intrusive process in which political operatives and consultants are put under oath and questioned about what they meant and intended and thought." Bauer says, "Such a review might also make a sensible citizen's blood run cold." Critics of the decision, such as Prof. Rick Hasen have called the decision a "see no evil approach." Hasen worries that the court's approach will "bring us back to the days before Congress passed McCain-Feingold," allowing broad circumvention of the electioneering communications rule.