Supreme Court to Hear Challenge to Ban on Broadcasts (Again) - January 23, 2007 Vol. 8, No. 2

January 23, 2007 Vol. 8, No. 2:

Published: 01/23/2007

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See the Jan. 9, 2007, OMB Watcher Court Upholds Wisconsin Group's Right to Air Grassroots Lobbying Ads

2006 Friend of the court brief filed by nonprofits in support of grassroots lobbying rights. Watch this site for an announcement about a brief for 2007 and procedures to sign-on in support.

Supreme Court to Hear Challenge to Ban on Broadcasts (Again)

The long-running debate over whether grassroots lobbying broadcasts should be exempt from the federal ban on "electioneering communications" may finally be resolved in 2007. On Jan. 19, the Supreme Court agreed to hear Federal Election Commission v. Wisconsin Right to Life during its current term, making a final decision before the 2008 elections likely. The case challenges the McCain-Feingold campaign finance rule barring corporations, including nonprofits, from paying for broadcasts that mention federal candidates 60 days before a general election or 30 days before a primary. The Supreme Court decision is likely to determine how the Federal Election Commission (FEC) uses its power to create exemptions to the rule and may generate action in Congress as well.

In 2006, the high court ruled that Wisconsin Right to Life (WRTL) could challenge the law as it applies to its grassroots lobbying ads, sending the case back to a lower court to review the facts in order to determine whether the First Amendment was violated. In 2004, WRTL ran radio ads asking the public to contact the state's U.S. Senators about judicial filibusters. Sen. Russell Feingold (D-WI) was running for re-election at the time, so WRTL had to discontinue the ads, even though they did not refer to the election, name any political party or characterize Feingold's position on the filibuster issue. In December 2006, the lower court ruled in favor of WRTL, saying the rule is unconstitutional as applied to them.

However, the court did not create an exemption for all grassroots lobbying ads, ruling that the issue must be brought before the courts on a case-by-case basis. This is not a realistic solution to the problems created by the electioneering communications rule, since the courts move so slowly and many nonprofits could not afford to litigate the issue. But if the Supreme Court rules in favor of WRTL, the FEC may invoke its powers under the Bipartisan Campaign Reform Act of 2002 (BCRA) to create an exemption in line with the court's decision. In 2006, when OMB Watch joined a group of nonprofits that asked the FEC to create a grassroots lobbying exemption, the agency decided to defer action until it has further guidance from the courts.

The Supreme Court order set out a schedule that will have all briefs submitted by April 18, followed by oral argument, making a decision possible by late June. In a press release, WRTL attorney James Bopp, Jr. of the James Madison Center for Free Speech said a favorable ruling will protect "the First Amendment right of citizens to lobby their members of Congress about upcoming legislative action, even in the proximity of elections."

The case is being appealed by the FEC and the sponsors of BCRA, including Sen. John McCain (R-AZ). In contrast to his willingness to bar broadcasts of grassroots lobbying messages in this case, McCain voted against disclosure of grassroots lobbying costs for big dollar federal lobbying campaigns in S. 1, the Senate ethics and lobbying reform bill passed Jan. 18.