Translating a Ruling Into New Limits for Issue Ads

By Matthew Mosk
Washington Post Staff Writer
Wednesday, August 22, 2007

In June, Chief Justice John G. Roberts Jr. and a bare majority of his colleagues blew up a key provision of the campaign finance overhaul that Congress passed in 2002. Now the Federal Election Commission has begun to piece together the fragments that remain to answer this question:

What can issue-oriented political ads that are paid for with corporate or union cash say before they become a clear appeal to vote for or against a presidential or congressional candidate?

FEC Chairman Robert D. Lenhard said the commission feels compelled to resolve that question before mid-December, when a barrage of ads is likely to start filling up airtime. "We believe it is critical to have a clear rule in place in time for the Presidential primaries and caucuses in early 2008," Lenhard said in a prepared statement.

Using the Supreme Court's opinion as a guide, the commissioners will develop guidelines telling groups what they can and cannot say in ads. The rules will be intended to make clear when an ad is lobbying Congress on an issue, and therefore is permitted, and when an ad crosses the line into electioneering. The FEC will enforce the new rules, and groups will be subject to fines if they violate the restrictions.

Legal experts said the FEC will rely heavily on a key paragraph in the court's opinion, which comes closest to defining what qualifies a commercial as "express advocacy" for a candidate and should be prohibited. The court's decision said such an ad would be barred if there is "no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

The McCain-Feingold legislation had prohibited corporate and union financing of issue ads in the days before an election that mentioned a candidate by name. Forbidding the naming of candidates was an important provision. Congress was looking for a well-defined restriction to do away with the sham issue ads that purport to be about a controversy but amount to an attack on a candidate. The groups remained free to run such ads if a separate political action committee paid for them.

But the law brought a legal challenge from an anti-abortion group called Wisconsin Right to Life, which was restricted from running ads in 2004 that urged listeners to call the state's senators and tell them not to filibuster Bush's judicial nominees. One of the senators -- Russell Feingold (D), a sponsor of the law -- was up for reelection and had been targeted for defeat by the group.

A majority of the justices rejected the idea that merely mentioning a candidate's name in an ad constituted electioneering. Roberts, who wrote the majority opinion, established a new rule: "A court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

The opinion has sparked a fierce debate among campaign finance lawyers over what kind of political messages should be allowed under new, and some say vague, guidelines set out in the 5 to 4 decision released near the end of the court's term.

Two election law specialists who have blogs, Robert Bauer in Washington and Richard Hasen of Loyola Law School in Los Angeles, have gone back and forth with rival interpretations of the ruling. Hasen has staked out the position that the Supreme Court has "eviscerated" longstanding prohibitions on the use of corporate and union money to finance campaign advertising.

Bauer responded, at one point, with a posting under the headline "Rick Hasen Has Harshly Denounced the Supreme Court's Campaign Finance Jurisprudence . . . Call Rick Hasen, Tell Him He is Worrying Too Much."

"His position is that the law has been shaken to its foundations and is in danger of collapse," Bauer said in an interview. "Mine is that the opinion is more narrowly drawn than he claims and that ads paid for by corporations of the Swift boat type -- hard attacks on persona, character or fitness -- will remain out of bounds in the pre-election period."

Where all seem to agree is that the Supreme Court ruling found that attempts by the McCain-Feingold Act to eliminate sham issue ads in the run-up to an election wound up eliminating issue ads that deserved constitutional protection.

Jan Baran, an election law specialist, said the ruling left a lot of room for the groups that have historically rolled out issue ads in the weeks before an election. "There may be very little that can be restricted," Baran said. "Even in a debatable case, the court said the tie goes to protected speech."

A number of organizations, including the National Rifle Association and the AFL-CIO, that traditionally advertise during campaigns are expected to weigh in with arguments before the FEC in hearings on the new regulations in the coming weeks.

Fred Wertheimer, president of the campaign finance reform group Democracy 21, also plans to argue before the FEC. Although he won't spell out his position yet -- not wanting to show his cards -- he says he believes the court left some room for the FEC to continue to limit sham ads.

"Obviously, the court made a considered decision here not to strike down the entire provision, but rather to state that there are circumstances where the provision could not be constitutionally applied," Wertheimer said. The FEC "has to recognize the kinds of ads that continue to be constitutionally prohibited."

How the FEC will tilt is hard to predict, Hasen said, especially because the commission is in some disarray, with a vacancy, a member whose tenure has expired and four who are awaiting Senate confirmation. Any new regulations require the votes of at least four members to take effect.

One thing is expected, campaign finance analysts said: Organizations will continue to push the limits of any new regulations, and more court battles will follow.

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