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Supreme Court Weakens, But Does Not Overturn, Federal Campaign Finance Law

June 25, 2007

Supreme Court Weakens, But Does Not Overturn, Federal Campaign Finance Law

Narrow Majority of Court Rules to Allow Groups to Air “Issue Ads” Immediately Prior to an Election

WASHINGTON, D.C. – The Supreme Court’s ruling that some broadcast advertisements that depict candidates immediately before an election are exempt from campaign finance regulation is a setback that will undermine but not eliminate limits on electioneering funded by corporate and union “soft money,” Public Citizen said today. The case is Federal Election Commission v. Wisconsin Right to Life, Inc.

“While this ruling is an unfortunate setback, it is not a blow to most citizens who want to curtail the flood of money in politics,” said Joan Claybrook, president of Public Citizen. “The court determined that ads that focused on legislative issues and specifically avoided discussion of an election, candidacy, political party or challengers were exempt from campaign finance limits, but its ruling permits application of BCRA to so-called issue ads that carry clear electioneering messages.”

Today’s case is part of a 10-year struggle by reformers to ban soft money in federal elections – money from corporations, unions and wealthy individuals in excess of the contribution limits. The reform drive culminated in passage of the Bipartisan Campaign Reform Act of 2002 (BCRA), which was then largely upheld by the Court in McConnell v. Federal Election Commission in 2003.

The composition of the Court has since changed, and opponents of the campaign finance law saw this as an opportunity to reverse the 2003 ruling and invalidate BCRA. But today’s Court decision did not do so.

“The court upheld the basic tenets of BCRA,” noted Laura MacCleery, Director of Public Citizen’s Congress Watch. “It did open a significant loophole in the law, however, that inevitably will be exploited by moneyed special interests.”

The court determined that a narrow class of advertisement can be identified as “issue ads” that are not subject to limits in the law. Ads that avoid statements of express advocacy – such as “vote for Smith” – and that do not convey electioneering messages by, for example, mentioning an election, candidacy, political party, or a candidate’s character or fitness for office, may qualify as issue ads.

“Many broadcast ads that depict candidates before an election will continue to be captured by the campaign finance law,” observed Craig Holman, campaign finance lobbyist for Public Citizen. “While this disappointing turn of events does turn back the clock, it is not a blank check. It will certainly be the focus of more challenges to come.”