Reactions to the U.S. Supreme Court's ruling in Federal Election Commission v. Wisconsin Right to Life (WRTL) include dire predictions of massive amounts of soft money spent on sham issue ads before the 2008 elections, and even the end of the entire campaign finance regulatory regime. But the actual impact of the decision, which exempts grassroots lobbying broadcasts from the "electioneering communications" ban on corporate funded broadcasts that refer to federal candidates within 60 days of a general election or 30 days of a primary, is likely to be much more limited. The Federal Election Commission (FEC) must decide whether or not it will establish a rule implementing the decision, while a similar case has been sent back to a lower court for a ruling consistent with the Supreme Court's opinion.

FEC Rule or Case-by-Case Enforcement?

At its June 28 meeting, the FEC made no decision about how it will respond to the ruling in the WRTL case. The day before, FEC spokesperson Bob Biersack told Roll Call ($) that the FEC's options are to:

• conduct a full rulemaking process, taking about one month to draft a proposed rule, allowing 30 days for public comment, and possibly holding a public hearing. The final rule, including any revisions, would then be published. Biersack said the process could be a "special interest slugfest."
• use the emergency rulemaking process to put a rule in place quickly, without public comment. Such a move would likely draw strong criticism from stakeholders that want input on the rule.
• proceed with no rule, implementing the exemption on a case-by-case basis. This approach would leave the public with no clear standards and could have a chilling effect on nonprofits unwilling to risk enforcement action by the FEC.

Former FEC Commissioner Michael Toner suggested that the Supreme Court's opinion in WRTL provides a useful framework for a rule. As a commissioner, Toner supported a 2006 proposal from Commissioner Hans von Spakovsky and supported by OMB Watch and other nonprofits that would have exempted grassroots lobbying broadcasts similar to the test set by the Court. The Democrats on the FEC blocked the rule, saying they preferred to wait for guidance from the courts.

The Supreme Court's Definition of a Genuine Issue Ad Should Guide FEC

The WRTL case makes a significant contribution to the evolving definition of what constitutes issue advocacy as opposed to partisan electoral messages. These factors suggest that a case-by-case approach to future enforcement of the electioneering communications rule would not provide a sufficiently objective standard. Chief Justice John Roberts' majority opinion said the standard "must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect." In other words, the rule must be limited to content of the broadcast, and the context, including the subjective intent of the speaker, is irrelevant. By removing these vague and contentious factors from consideration, the Court has made the job of drafting a rule much easier.

The FEC can look to pages 16 and 21 (footnote 7) of the Court's opinion for the major factors in any proposed rule. These identify a genuine issue ad as follows:

• The focus of the broadcast is on a legislative issue, takes a position on the issue, urges a federal officeholder to support that position, and calls on the public to contact the officeholder. This is essentially the same as the IRS regulation defining grassroots lobbying.
• There is no reference to the "election, candidacy, political party, or challenger"
• Takes no position on a candidate's character, fitness for office or qualifications

The Court also made it clear that the fact that issue advocacy occurs close to the time of the election does not weaken constitutional protections. Similarly, the relevance of the issue to election debates cannot be considered. The bottom line is that any FEC rule or other action must give the benefit of the doubt to the speaker.

In addition, enforcement of the electioneering communications rule cannot unduly burden nonprofit or corporate speakers, since the Court said it must "entail minimal if any discovery to allow the parties to resolve disputes quickly without chilling speech…"

Maine Case Revived

Within days of its decision in WRTL, the Supreme Court sent a similar case, the Christian Civic League of Maine, Inc. v. Federal Election Commission back to a lower court for a new ruling consistent with its decision in WRTL. The Christian Civic League (CCL) appealed to the Supreme Court after the lower court ruling dismissed its challenge to the electioneering communications rule.

The facts in the CCL case are similar to those in WRTL. CCL wished to broadcast ads referring to Sen. Olympia Snow (R-ME) during her re-election campaign last year. A three-judge panel dismissed the CCL lawsuit in September 2006 because the ads were about legislation that had already been voted on by the time the case came before the court, making it moot. In its WRTL decision, the Supreme Court held that this situation fits an exception to the general rule against judicial consideration of moot cases, since it is a dispute capable of repetition, and the timing of the event is so short, it cannot be litigated prior to the conclusion of an event, in this case a legislative vote. Without the exception, the issue would evade judicial review.