Following the June U.S. Supreme Court ruling in Federal Election Commission vs. Wisconsin Right to Life, Inc., which found the federal electioneering communications ban unconstitutional when applied to genuine issue ads, there has been a fast-paced effort to tie up loose ends in related cases and set the stage for the 2008 election. The Federal Election Commission (FEC) announced that it will issue a proposed rule in August to incorporate the decision into its regulations. In two related court cases, the FEC conceded that certain ads in question were genuine issue ads, including one that was critical of a senator's position on a bill. The "electioneering communications" provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporations, including nonprofits, from paying for broadcasts that refer to a candidate for federal office within 30 days of a primary and 60 days of a general election.

FEC Rulemaking

The next major step in protecting grassroots lobbying communications is establishing a rule in FEC regulations, rather than requiring each nonprofit to guess at whether its broadcast qualifies for the exemption under the Supreme Court's ruling. On July 18, Wisconsin Right to Life (WRTL) lawyer James Bopp filed a petition at the FEC on behalf of the James Madison Center for Free Speech asking the FEC to write the definition of protected issue ads into its rules using the Court's language. Bopp said, "Promulgating such a rule should be neither complex nor time-consuming because the Commission should simply adopt the Court's own statement of the test for communications that are subject to the 'electioneering communication' prohibition . . ." The petition also asks for safe harbor examples. Bopp commented, "Groups should not have to hire a lawyer and go to court to get government permission to engage in speech that the Supreme Court has already held to be protected by the First Amendment."

The same day, the FEC announced it will work on a rulemaking to implement the Supreme Court's decision. The FEC press release said the agency plans to issue a proposed regulation in August, request comments in September and hold a public hearing in October. A vote on a final rule is set for the end of November. FEC Chairman Robert Lenhard said, "We believe it is critical to have a clear rule in place in time for the Presidential primaries and caucuses in early 2008." Because of the early presidential primaries, the first 30-day blackout period will begin in December and will occur during times in 2008 while Congress is considering legislation.

Resolving Related Litigation: Criticism of Officeholder's Policy Position Allowed

In a related case, the Christian Civic League of Maine (CCL) settled its 2006 as-applied challenge when the FEC joined its motion asking the D.C. district court to rule in its favor. In 2006, the court denied CCL's request for a preliminary injunction barring application of the electioneering communications rule to its grassroots lobbying ads. The ads went further than those in the WRTL case because they urged people in Maine to contact Sens. Olympia Snowe (R-ME) and Susan Collins (R-ME) and ask them to change their position on the Marriage Protection Amendment. This difference is significant because it sets a broader framework for defining genuine issue ads that are exempt from the electioneering communications ban. As a result, an ad that states the position of the officeholder/candidate on an issue and either criticizes or praises his or her position is recognized as protected issue advocacy.

WRTL's 2006 Challenge Settled

On July 12, WRTL asked for summary judgment briefing schedule for a 2006 ad about the Child Custody Protection Act in a challenge that was not specifically resolved in the Supreme Court case. In 2006, the FEC argued the district court could not rule on the ad without more discovery proceedings allowing the commission to get background information about WRTL's ad campaign. The Supreme Court ruling said such extensive discovery is too burdensome and is no longer allowed. WRTL also asked the court to block Sen. John McCain (R-AZ) and other members of Congress from intervening in the case any further. According to the motion, McCain and others could no longer assert that they would be injured if similar ads were to be broadcast, so they had no standing under Article III of the U.S. Constitution and must be removed from the case. Bopp stated, "Allowing the rich campaign finance 'reform' gang to pile on in cases where nonprofit citizen groups are trying to vindicate their liberties is wrong, unconstitutional, and inconsistent with the Supreme Court's mandate as to how these cases are to be conducted."

On July 18, the FEC filed a joint motion along with WRTL and the interveners, McCain et al., asking the court to rule in favor of WRTL. The FEC and the congressional reformers acknowledged that WRTL's ad is constitutionally protected as a genuine issue ad.