The Bipartisan Campaign Reform Act ("BCRA") adopted in 2002 prohibits the purchase of broadcast commercials by labor unions and corporations using their general funds during the 30 days before a Federal primary and the 60 days prior to a Federal general election. The Act prohibited these "electioneering communications," and essentially defined an electioneering communication as any mention of a Federal candidate. The Supreme Court this past week decided to hear the appeal of a US District Court decision which found the prohibition unconstitutional as applied to a Wisconsin Right to Life group, organized as a corporation, which had purchased ads mentioning a candidate in the 60 days prior to an election. If the Supreme Court upholds this decision, we may see more corporate and union money spent on advertising prior to the 2008 elections.
The District Court decision is not so broad so as to allow unlimited political advertising by these groups. Instead, the Court only held that advertising that was directed at specific issues (in this case Senate filibusters of judicial nominees) was not prohibited if the message was not directed at the election. In this case, the ads asked that residents call their Senators and tell them to stop delaying the judicial nominations, naming Senator Feingold, who was up for reelection. Perhaps not so coincidentally, Senator Feingold was one of the principal authors of BCRA (also known as the McCain-Feingold Act). The ads did not specifically tie this issue to the election, or mention Senator Feingold’s candidacy at all. More on the case can be found in an article in Saturday’s Washington Post.
A Supreme Court decision upholding the District Court might not open the floodgates to unlimited political advertising by corporations and unions, as a narrow decision would only allow ads that didn’t mention a candidate. However, as the brief appealing the District Court decision suggests, many of these commercials, though not mentioning the election, somehow seem to keep popping up at election time. Might they actually be meant to influence the election even though they don’t specifically ask voters to vote for or against a candidate? If so, and the District Court decision is upheld, expect to see more of these ads next year at election time.
Also, some wonder if the Supreme Court, which has had a significant changes in its membership since BCRA was first upheld, could use this case to make a broader decision on BCRA. Some wonder if the Court could even find that the Act broadly violates the First Amendment rights of entities that want to "speak" about political topics. If so, even more political money could flow into advertising.
Thus, any decision upholding the District Court could end up allowing more political advertising. Even under current rules, I think that everyone expects that 2008 will be a record-breaking political broadcasting year. Broadcasters should watch this decision to see if they can expect even more political advertising to come their way.