On June 25, the U.S. Supreme Court announced its decision in Federal Election Commission vs. Wisconsin Right to Life, Inc., ruling 5-4 that the federal electioneering communications ban is unconstitutional when applied to genuine issue ads. The case challenged a provision in the Bipartisan Campaign Reform Act of 2002 (BCRA) that bars corporations, including nonprofits, from paying for broadcasts that mention federal candidates 60 days before a general election or 30 days before a primary (known as the blackout period). Though the Court ruled in favor of groups that run issue ads during elections, the debate will likely continue throughout the upcoming presidential election and beyond.

Chief Justice John Roberts wrote the majority opinion, finding that Wisconsin Right to Life's (WRTL) ads opposing judicial filibusters during the 2004 election season were not the equivalent of express advocacy — supporting or opposing a candidate — but were genuine issue ads. The Court determined that an ad can be regulated and considered express advocacy "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL's three ads are plainly not the equivalent of express advocacy." The ads in question were considered genuine issue ads for two reasons: the ads' focus on a legislative issue and the absence of a reference to an "election, candidacy, political party, or challenger; and they do not take a position on a candidate's character, qualifications, or fitness for office."

The Court determined that the content of an ad should be considered, not the context. This rejects the government's argument that genuine issue ads cannot exist during the blackout period because all discussion of issues at that time would essentially become an electioneering ad. The majority disagreed with the government's reasoning; contextual factors are irrelevant, and the fact that WRTL engaged in express advocacy through other, separate actions does not qualify for censorship of issue advocacy. Roberts wrote, "Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

Advocates including OMB Watch agree that issue advocacy should be permitted even in the days before an election. Since 501(c)(3) nonprofit organizations cannot support or oppose candidates, they would have been prohibited from conducting any lobbying, or issue advocacy, during the blackout period prior to the Court's decision. Thus, this decision is regarded as a free speech victory for nonprofit organizations.

The Court's decision does not mean the end of campaign finance reform or BCRA, or even an end to the ban on mentioning a candidate by name in an ad within the blackout period. However, it creates an exemption to the ban. The Court's decision is significant because a standard is set — it must be obvious that an ad supports or opposes a federal candidate for it to be forbidden. Yet the test set down by the Court appears vague: one can argue that an ad is always open to interpretation. Issue ads could come remarkably close to express advocacy ads without passing the test of having "no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Some, however, are concerned about how corporations and unions will now interpret the decision. As an article in the June 26 Washington Post stated, "Critics said the decision will encourage a financial arms race between well-heeled special interest groups." Many groups that are concerned about the role of money in elections see the decision as a sign that future chipping away at BCRA is now inevitable.

As an editorial in the June 26 New York Times observed, "Although the court's five most conservative justices voted in the majority and the four more liberal justices were the dissenters, the outcome was not easy to categorize simply along ideological lines. Both sides of the campaign finance debate have always attracted unusual coalitions." Indeed, OMB Watch joined with liberal and conservative groups to file an amicus brief urging the Court to protect the right of charities to broadcast grassroots educational and lobbying communications even during the blackout period.

There remains an uncertain standard for assessing ads during the blackout period, and concerns of money in politics and the possibility of future litigation still exist. The precise impact of the decision and its extent are unclear, but it importantly protects the First Amendment rights of nonprofit organizations that have a valuable voice in public policy debates.