By Larry Norton and Jim Kahl
On June 25, 2007, the U.S. Supreme Court removed barriers on ads financed by corporations and labor groups that mention a federal candidate and are run in the days before an election. (Federal Election Commission v. Wisconsin Right to Life). In sweeping aside the rules of the road that it approved just three-and-a-half years ago, the decision is expected to unleash millions of dollars in corporate- and labor- sponsored advertisements in the run-up to federal elections.
The Wisconsin Right to Life case involved a challenge to a key part of the 2002 McCain-Feingold law -- the "electioneering communications" provision -- which banned corporations and unions from using general treasury funds to pay for ads on television, radio, or satellite that mention a federal candidate and that are run shortly before an election (30 days before a primary; 60 days before a general election). Under McCain-Feingold, such ads can be financed only through a political action committee (PAC) funded by the voluntary donations of corporate officers, directors, and shareholders.
In a 5-4 ruling, the Supreme Court effectively ended the 30 and 60 day blackout periods. Chief Justice Roberts, writing for the majority, said, "we give the benefit of the doubt to speech, not censorship." The majority of the Court concluded that so long as an ad may be reasonably interpreted as something other than an appeal to vote for or against a specific candidate, it is constitutionally protected from regulation.
For corporations, trade associations, and unions, the focus now shifts away from blackout periods and the mode of communication to whether a proposed ad contains, in the words of the Court, "express advocacy" or its "functional equivalent." Inevitably, there will be questions over whether specific ads can only be interpreted as an appeal to vote for or against a specific candidate. The Court's decision will also revive a longstanding debate at the FEC and in the courts over the limits of "express advocacy."
With that caution in mind, however, the Supreme Court decision leaves ample room for well-crafted ads aimed at influencing legislative and executive action. Advocacy groups, trade associations, and other businesses and labor organizations can be expected to flood radio and television during the former blackout periods - exactly those times when the public is paying greater attention and officials are most susceptible to persuasion. Notable for broadcasters, these ads would not be subject to Section 315 or the Communications Act and its provisions for Unit Charge.
Lawrence H. Norton and James A. Kahl are attorneys in the Political Law Practice of Womble Carlyle Sandridge & Rice, PLLC, in Washington, D.C. Norton and Kahl served as General Counsel and Deputy General Counsel, respectively, of the Federal Election Commission, spanning the period from September 2001 to March 2007.
