The U.S. Supreme Court heard oral argument on April 25 in Wisconsin Right to Life's (WRTL) challenge to the constitutionality of a campaign finance law that limits certain broadcasts, including grassroots lobbying messages, during federal campaigns. The issue before the Court is whether the law is unconstitutional as applied to the facts of WRTL's 2004 grassroots lobbying radio ads. Much of the argument addressed what standard should be used to define "genuine issue ads" entitled to constitutional protection. For nonprofits, much depends on whether the Court sets a clear standard for the 2008 election year. A decision is expected during the summer, which allows enough time for Congress or the Federal Election Commission (FEC) to establish rules that comply with the Court's decision. A Short History The electioneering communications rule is part of the Bipartisan Campaign Reform Act of 2002 (BCRA), commonly called McCain-Feingold after its sponsors in the Senate. It bars corporations, including nonprofits, from funding broadcasts that mention federal candidates 60 days before a general election or 30 days before a primary. WRTL's radio ads encouraged listeners to contact their U.S. Senators on the issue of judicial filibusters. Because Sen. Russell Feingold (D-WI) was running for reelection at the time, WRTL had to discontinue the ads when the 60-day blackout period began, even though the ad was not about support or opposition to Feingold's election. The Supreme Court upheld the overall constitutionality of the electioneering communications rule in McConnell v. FEC in 2004, but left the door open to challenges to specific applications of the rule involving genuine issue ads. WRTL brought such a challenge, but the FEC argued in court that the McConnell decision barred such "as applied" challenges. In early 2006, the Supreme Court rejected the FEC argument and sent the case back to a lower federal court to review the facts. In December 2006, the lower court ruled in favor of WRTL, finding 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 lower court argued that the determination of whether the ad was electioneering should be based on the content of the message in the ad, not on the context of the ad. In other words, while WRTL's political committee opposed Feingold's reelection, the ad in question was solely about contacting the senator to oppose a judicial filibuster. Thus, the court concluded that the ad was not electioneering and is protected free speech that cannot be banned even during the blackout period provided by the McCain-Feingold law. The FEC appealed. The Arguments against WRTL and Questions and Comments from the Court Press coverage tended to focus more on the changed make-up of the Court since it upheld the general constitutionality of the rule and less on the actual issue before the Court, which was whether the specific facts of the WRTL ad require an exemption from the rule based on the First Amendment. However, the Justices' questions showed that the Court is taking a close look at the factors to be considered. Attorneys for the FEC and congressional interveners led by Sen. John McCain (R-AZ) argued that exemptions should be rare in order to avoid undermining BCRA. They said the vast majority of issue ads in studies before the Court in McConnell were meant to influence elections. But Justice Antonin Scalia noted at that time, "We didn't have a concrete case such as this one, in which the assertions of the other side are very appealing as far as the rights of citizens to band together for an issue ad…" When asked how to determine which broadcasts should be exempted, the FEC's attorney, Solicitor General Paul Clement, declined to suggest a standard. Instead, he said other challenges could be stronger that WRTL's, noting that 501(c)(3) organizations would have an "inspirational" challenge because it would be "difficult" to set up a political action committee to fund grassroots lobbying broadcasts. He also cited a case in Maine where the federal candidate referenced in the ad was unopposed in the election. Justice Anthony Kennedy pointed out that public attention is often more focused on issues prior to elections, making it a strategic time to air issue ads. Clement responded that groups can air ads without mentioning the official who is also a federal candidate. Kennedy said a group might want to target an official, "in order to affect his conduct or her conduct once they're reelected, so that they'll take a different position, a second look." This raised the issue of dual purpose broadcasts, and Clement said this is what Congress intended to regulate. Seth Waxman, arguing for McCain, said the standard should be whether a challenger can show an ad "has characteristics such that no reasonable voter could view it as promoting, attacking, supporting or opposing a candidate." He offered no definitions of these terms. Chief Justice John Roberts replied, "Do we usually place the burden…on the challenger to prove that they're allowed to speak, as opposed to the Government to prove — to carry the burden that they can censor the speech?" The FEC's defense of the rule is that it does not ban broadcasts that mention federal candidates, but only requires them to be paid for with funds raised separately by a political committee subject to contribution limits under federal election law. Justice Samuel Alito asked Waxman, "What do you make of the fact that there are so many advocacy groups that say this is really impractical?" Waxman responded with examples of groups that have not named members of Congress in their broadcasts, but Roberts responded that the fact that one groups chooses not to do so "doesn't seem particularly pertinent to me." WRTL's Arguments and Questions and Comments from the Court James Bopp. Jr., representing WRTL, emphasized that the government has "refused to state a test to determine what's a genuine [issue] ad." Responding to Roberts' question of whether it is possible for a fact-specific challenge to the electioneering communications rule to succeed without overturning BCRA, Bopp cited three key features that would protect grassroots lobbying and genuine issue ads. These are based on the content of the communication. Such ads:

• "focus on a current legislative matter, take a position on it, urge people to contact them, their congressmen and senators, to take a particular action or position."
• "the ads do not mention an election, candidacy, political party, challenger, or the official character, qualifications, or fitness for office."
• "as long as the ad meets this pattern…the fact that the ad mentions the name, the position of a public official on an issue and praises or criticizes him or her for that does not affect its genuineness."

Many of the questions the Justices asked Bopp addressed whether the test should be limited to the content of the ad, or take the political context into account. Justice Stephen Breyer gave the example of ads by former Sen. Lauch Faircloth in North Carolina that said he was fighting against trial lawyers' efforts on liability laws, when "one of the parties had spent millions trying to paint Faircloth's opponent, John Edwards, as the creature of the trial lawyers, that anyone in North Carolina knew it….tell me how anyone could know such a thing without looking at the context." Justice David Souter asked, "Why should we ignore the context?" Bopp responded that "that test….would invite ads to be prohibited based upon the varied understandings of the listener…" to which Souter replied, "It is impossible to know what the words mean without knowing the context in which they are spoken." Bopp also pointed out, "If there is no workable test that is reasonably ascertainable by small grassroots organizations that separates genuine issue ads from sham issue ads — this court said in Ashcroft you cannot throw out the protected speech in order to target the unprotected speech," noting that Congress continues to meet during the blackout periods. Some of the questions related to the portion of the WRTL ad that referred listeners to a website. Although WRTL had a political committee that was working to defeat Feingold, the special website was limited to the filibuster issue. What's Next? The Court's decision could go in many directions. It could decide the lower court was wrong not to consider the context of WRTL's ad and send the case back for further consideration. This would make it next to impossible for nonprofits to know what grassroots lobbying broadcasts are worthy of constitutional protection when the primary elections begin in early 2008. Hopefully, the Court will provide clear guidance by setting a concrete standard to apply to WRTL's fact situation. The standard could be based solely on the content of the broadcast. It could include consideration of the speaker's tax-exempt status and ability to establish and fund a political committee. If no such clear standard emerges from this case, we are likely to see multiple challenges to the electioneering communications rule as applied to myriad fact situations. Since the law now allows these cases to be brought in any federal district court, inconsistent standards could emerge and apply throughout the 2008 election year.