Late yesterday afternoon the House voted 215-205 approving Rep. Mike Pence's (R-IN) amendment to the Department of Commerce and Justice, and Science, and Related Agencies appropriation bill (H.R. 3093). The Pence amendment prohibits funds appropriated in the bill from being used by the Department of Justice to enforce provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) dealing with ''electioneering communications.'' The amendment does not change the ability of the Federal Election Commission (FEC) to charge civil penalties. The electioneering communications section of BCRA prohibits the use of corporate or labor union funds to pay for broadcast advertisements that include the name of a federal candidate within 30 days of a primary or 60 days of a general election.

Some groups have protested the amendment, writing to House Members; "The recent decision in Wisconsin Right to Life v. FEC did not overrule McConnell and did not strike down the ''electioneering communications'' provisions but rather said they were unconstitutional as applied to certain ads. As a result, the ''electioneering communications'' provisions of BCRA remain the law of the land, as limited by the WRTL decision."

The FEC is expected this summer to conduct a rulemaking to provide guidance as to what ads are still covered by the "electioneering communications" provisions and what ads are protected as a result of the WRTL decision. Considering that the Supreme Court decision addressed genuine issue ads, the question presented with the Pence amendment is whether or not to repeal the electioneering provision entirely. According to CongressDaily ($$), Pence was not sure whether it would survive a conference report, and that he only submitted the amendment to make a statement. In a press release Pence said, "Today freedom of speech prevailed on the floor of the People's House."

The Federal Election Commission's (FEC) rulemaking announcement followed a statement that attorney James Bopp, who represented Wisconsin Right to Life (WRTL), filed a petition with the FEC for a rulemaking on behalf of the James Madison Center for Free Speech. The petition asks that the FEC apply the Court's decision in the WRTL case, that the prohibition on "electioneering communications" cannot be constitutionally applied to genuine issue ads. The petition suggests that the rulemaking should be done by directly taking language from the Court's majority opinion. It also asks that the FEC abolish a previous rule defining "express advocacy." Bopp would like the FEC to create some safe harbor examples of genuine issue ads along with a rule that not only addresses ads on pending votes, but also ones that urge candidates to take a position on an issue and ones that advise the public of the candidate's position. 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." For more information, see the James Madison Center press release.

The Federal Election Commission (FEC) announced that it will work on a rulemaking given the Supreme Court decision in Wisconsin Right to Life v. FEC. The Court found that the ads in question were genuine issue ads, as opposed to electioneering ads that advocated for the election or defeat of candidates. The FEC plans to issue a proposed regulation in August and request comments with a public hearing in October, and a vote on a final rule by the end of November. If this timeline is kept, a rule will be set for the primaries in early 2008. The Court's majority opinion has made the FEC's job of drafting a rule pretty easy. For more information, see the FEC press release.

'The FEC intends to make clear how we are interpreting this exemption before mid-December, when the electioneering communication timeframes for the 2008 campaign will begin.' said FEC Chairman Robert Lenhard. 'We believe it is critical to have a clear rule in place in time for the Presidential primaries and caucuses in early 2008.'

From BNA Money and Politics ($$); After the Supreme Court ruling in the Wisconsin Right to Life (WRTL) case, the Federal Election Commission (FEC) and members of Congress who intervened in the case came to an agreement late last week with WRTL attorney James Bopp. The agreement details the features of political ads sponsored by corporations and unions that all sides specify as permissible in future campaigns. Nevertheless, legal challenges to restrictions on ads may continue to be reviewed by the courts on a case-by-case basis. Bopp filed of a joint court motion with the FEC and the congressional supporters, stating that the 2006 Christian Civic League of Maine (CCL) ads were constitutionally protected. Both the CCL case and WRTL cases are being handed back to the lower court and WRTL has filed a motion asking a three-judge U.S. District Court to rule quickly on the legality of the ad.

In the WRTL litigation, Bopp filed a separate plea asking the lower court to exclude Senator John McCain (R-AZ) and other congressional interveners from future proceedings. 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 Constitution and must be removed from the case. For more information, visit the scotus blog.

Update:BNA Money and Politics ($$) reports that Bopp, lawyers for the FEC, and lawmakers supporting BCRA agreed to file a joint motion urging the lower court to declare that the ads sponsored by WRTL in 2006 and the ads in question from 2004 were constitutionally protected. "he motions also called for dismissal of Bopp's previous efforts to obtain a court injunction allowing the WRTL and CCL ads. Also dropped as moot was an effort by Bopp to exclude BCRA's congressional backers, led by Sen. John McCain (R-Ariz.), from the litigation over interpretation of the reform law."

Yesterday during a Federal Election Commission (FEC) hearing, the commission was considering the issue of hybrid ads. BNA Money and Politics ($$) discusses yesterday's hearing in length and the wrangling of their possible rulemaking. A final rule has not been drafted with details still to be worked out, including how much of the cost of an ad could be taken on by a party and how much must be paid by the candidate or candidates named in the ad. However, the article also touches upon another subject the FEC is considering.

Another highly anticipated action is an expected FEC rulemaking or policy statement on TV and radio ads that mention federal candidates in the final weeks before an election. Corporate and union funding of such ads was banned under the 2002 Bipartisan Campaign Reform Act, but the Supreme Court recently carved out a major exception in its June 25 ruling in FEC v. Wisconsin Right to Life Inc. The court ruled there is a First Amendment exception to the BCRA ad-funding restrictions for certain "grass roots" lobbying messages focusing on legislation or policy issues. The FEC is now expected to try to determine exactly which messages fit that exception, leading to a potentially explosive increase in the type of ads that the commission says pass muster.

Hopefully the FEC will use the Court's opinion to craft a rulemaking that may put off expected litigation and confusion before the 2008 election season is in full swing.

The recent New York Times Magazine has an article titled, "Right to Spend" which discusses the complex and certain issue of money in politics by referencing the recent Wisconsin Right to Life (WRTL) decision without actually discussing the case. "Now, however, the Supreme Court has used the First Amendment to throw out one part of the law and threatened to discard the rest. In this new gilded age, are we doomed to return to gilded-age politics? Certainly, the end of McCain-Feingold would have consequences." However, this is not the end of McCain-Feingold (the Bipartisan Campaign Reform Act, or BCRA). As an article in the latest OMB Watcher points out, the decision upholds the free-speech rights of grassroots lobbying organizations, and the actual impact is likely to be much more limited than many are forewarning. Readers of the New York Times Magazine piece can easily be misled to understand that the rest of BCRA will soon be dismissed. Bob Bauer at moresoftmoneyhardlaw.com also responds here.

Meanwhile, as anticipated, discussion of the opinion remains. In the LA Times, Thomas Mann and Bradley Smith discuss the merits of the Court's decision.

On July 11 during a public hearing the Federal Election Commission (FEC) is set to consider a regulation on "hybrid ads," to possibly allow political parties help finance the television advertising of campaigns. The proposed new FEC rule would allow a party to pay for up to 75 percent of any candidate's advertising costs. The hybrid ad rulemaking came up after the Bush-Cheney '04 campaign used Republican National Committee funds to pay over $40 million in ads. The Campaign Legal Center and Democracy 21 filed comments with the FEC on the proposed rulemaking.

The FEC also has a pending advisory opinion request asking that a presidential campaign be allowed to use private money from a special legal and accounting fund (GELAC) to pay for a large portion of its TV ads. The GELAC is made up of private contributions which publicly funded candidates are allowed only to use for legal and accounting costs while money for other campaign expenses, such as advertising, is supposed to come from the public financing program. However, the Kerry campaign argues it should be allowed to use GELAC funds to cover some of a vendor's paperwork expenses. Democracy 21 and Campaign Legal Center oppose the advisory opinion request because of concerns that it would undermine the purpose of the public financing system. For more information on the July 12 public hearing, visit the FEC website.

Following the U.S. Supreme Court ruling in the Wisconsin Right to Life (WRTL) case last week, on June 29 the Court sent back another case (Christian Civic League of Maine Inc. v. Federal Election Commission) to the lower court for a new ruling consistent with the WRTL June 25th decision. The Christian Civic League (CCL) had asked the Supreme Court to hear an appeal of a lower court's ruling that dismissed its challenge to restrictions on funding of political ads under the Bipartisan Campaign Reform Act (BCRA). The CCL case involved ads referring to Senator Olympia Snow (R-ME) during her re-election campaign last year. A three-judge panel dismissed the CCL lawsuit last September saying the challenge was moot because the ads were on legislation that had already been voted on. And the court would not grant an exception for ads that might come up again in the future. For more information visit the James Madison Center for Free Speech.

A National Journal ($$) column explains how the prohibition on corporations paying for broadcasts that mention federal candidates 60 days before a general election or 30 days before a primary in the Bipartisan Campaign Reform Act of 2002 (BCRA) sought to prevent business corporations from getting involved in election campaigns, but in turn censored nonprofit groups' criticism of the work of elected officials. "Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent."

However, the Court missed an opportunity to apply a "principled, pragmatic, nonideological solution," supported in the amicus brief filed on behalf of a group of charities, including OMB Watch.

The ideal solution would have been for the Supreme Court to uphold the ad ban as applied to business corporations and to carve out an exception for nonprofit advocacy groups. How many justices proposed doing that? Not one. Instead, in FEC v. Wisconsin Right to Life Inc., the five conservatives in the majority and the four liberal dissenters alike focused on all-or-nothing arguments treating all corporations as fungible.

One reason for taking this "all-or-nothing" approach is because the Court sees no difference between the speech rights of a business corporation and individuals and citizen groups. A blog from the Campaign Legal Center addresses this; "The lack of interest in the nonprofit tax exempt status of WRTL is consistent with a jurisprudence of political speech without reference to speakers." Chief Justice Roberts is not concerned about the context or who is speaking (a 501(c)(3) or not), but concerned about the content of the political speech itself.