Although the election is over, the ongoing battle about the difference between issue advocacy and electioneering is headed to the U.S. Supreme Court in Citizens United vs. Federal Election Commission. Meanwhile, a new Advisory Opinion from the Federal Election Commission (FEC) also wrestles with this issue.

The Bipartisan Campaign Reform Act (BCRA) of 2002 prohibits corporations, including nonprofits, from airing broadcasts that refer to a federal candidate 30 days before a primary election and 60 days before a general election. This electioneering communications rule was modified by the Supreme Court in the case Wisconsin Right to Life v. FEC (WRTL) in 2007 to limit the prohibition to ads that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate."

The WRTL case did not resolve the debate over what constitutes issue advocacy and what constitutes an appeal to vote for or against federal candidates. As a result, the Supreme Court has agreed to hear arguments in the Citizens United case at the end of February 2009. Citizens United is a nonprofit organization which is tax-exempt under section 501(c)(4) of the Internal Revenue Code.

Citizens United's lawsuit, which was initially filed in December 2007 in the U.S. District Court for the District of Columbia, claims that television ads for its film, Hillary: The Movie, should not be subject to donor disclosure and disclaimer requirements under FEC rules because they are unconstitutional as applied to the group's three advertisements for the movie. The suit also contends that its ads for the film about Sen. Hillary Clinton (D-NY) are purely commercial, that the film itself is no different from documentaries seen on television, and that the film and the ads should be exempt from any type of regulation, including the prohibition on electioneering communications.

The district court ruled that the group could not run ads for its film without complying with the donor disclosure requirements and that any exception to disclosure requirements for TV ads for the movie would have to be granted by the Supreme Court. "Whether the Supreme Court will ultimately adopt that line as a ground for holding the disclosure and disclaimer provisions unconstitutional is not for us to say," the district court noted. In addition, the court said Citizens United offered no evidence that disclosing donors would lead to retaliation.

Second, the court determined that the film was not a constitutionally protected discussion of issues, under the test the Supreme Court established in the WRTL case, because it was "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her." Thus, the film and its ads were deemed "electioneering communications."

Even though the elections are over, the case is still ripe because Citizens United says it plans to release similar ads in the future. According to a blog that follows the Supreme Court, the "FEC did not contend that the Court lacked jurisdiction to hear the appeal, and on [Nov. 14] the Court simply 'noted probable jurisdiction,' indicating that it agreed it had authority to decide the case."

Separately, the National Right to Life Committee, Inc. (NRLC) recently sought an Advisory Opinion from the FEC to determine the legal rules that apply to two radio advertisements they wanted to air before the 2008 election. Both were critical of then-Democratic presidential nominee Barack Obama's position on abortion. The first ad asks Obama to apologize to the NRLC for calling them liars. The second ad is the same, with the addition of the phrase "Barack Obama: a candidate whose word you can't believe in."

The FEC initially released a draft Advisory Opinion that concluded that the first ad does not constitute express advocacy and, thus, it "would not constitute an expenditure" and it "would be a permissible corporate-funded electioneering communication." The FEC draft opinion concluded that the second ad contains express advocacy and "the funds used to finance its broadcast would constitute an expenditure" because the second ad identified Obama as a candidate, and it re-worded his campaign slogan of "Change You Can Believe In."

However, in late November, the FEC issued Advisory Opinion 2008-15, a final opinion on the NRLC ads, which said, "The Commission concludes that the NRLC may use its general treasury funds to finance the broadcast of the first advertisement. The Commission could not approve a response by the required four affirmative votes regarding the NRLC's second advertisement." Thus, it is unclear if the second ad constitutes express advocacy or if its financing would constitute an expenditure subject to FEC rules.

Funds that advocate for or against a federal candidate are considered electioneering expenditures. Corporations, including nonprofit organizations, are prohibited from making expenditures related to a federal election but may use their general treasury funds to finance the broadcast of an advertisement that is genuine issue advocacy.

The ambiguity surrounding issue advocacy and electioneering for candidates is not new. During the election, a 527 group called The Real Truth About Obama, Inc. (RTAO) filed a lawsuit in the U.S. District Court in Richmond, VA, against the FEC and the U.S. Department of Justice (DOJ). RTAO planned to run issue ads examining then-Democratic presidential nominee Barack Obama's position on abortion and other policy issues. RTAO argued that is not a political action committee (PAC) because it did not plan to advocate for Obama's defeat or election.

The lawsuit challenges the FEC's definition of express advocacy for or against candidates. In WRTL, the Court sought to protect messages put out by political groups that engage in issue advocacy. However, according to RTAO, the regulation put in place after the WRTL decision is unconstitutionally vague and overbroad. RTAO is challenging this new regulation, which the group charges could restrict messages if they contain "indicia of express advocacy," such as references to political parties, and could exclude some "express advocacy."

Until the courts clarify the definitions, the current ambiguity will continue to create confusion among those who genuinely want to engage in issue advocacy, as well as a loophole for those who desire to exploit the lack of clarity to evade campaign finance restrictions.