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D.C. Circuit Weakens Campaign Ad Regs

In a decision that could free up even more campaign money for broadcasters, a three-judge panel of the D.C. Court of Appeals has ruled that regulations prohibiting electioneering communications in the run-up to general federal elections and primaries do not necessarily apply to ads that mention candidates.

That could pave the way for more campaign TV and radio advertising from unions and corporations.

The Supreme Court had upheld the Bipartisan Campaign Reform Act (BCRA) of 2002’s authority to regulate electioneering communications, so-called advocacy ads that expressly advocate the election of a particular candidate. But it had left open the question of whether those regulations applied to ads that, even though they mentioned a candidate, were found to be promoting an issue rather than a candidate.

In a 2-1 summary judgment, the panel said that mentioning a candidate does not necessarily make an ad electioneering communications subject to BCRA limits, and that the specific ads in question were not electioneering ads even though they mentioned Senator Russ Feingold (who, coincidentally or not, teamed with McCain on campaign finance reform law that triggered the challenge)..

Losers in the case were the FEC and, among others, Feingold's fellow campaign finance reformer, Senator John McCain (R-Ariz.)

Campaign law as written prevents a corporation or union from spending general treasury funds to pay for a broadcast ad that refers to a clearly identified candidate in the 60 days before a general election or 30 days before a primary.

The FEC, in implementing the 2002 law, said it wanted to create "a bright line rule for when a corporation or labor organization can pay for a communication referring to a federal candidate." The D.C. Circuit says the line can't be quite that bright and still accord sufficient protection to speech.
The Supreme Court upheld the general constitutionality of regulating advocacy ads, but left open the question of whether the reference to a candidate made them, de facto, advocacy ads.

The challenge had been brought by Wisconsin Right to Life, which had wanted to run radio and TV ads about filibustering judges that mentioned Senator Russ Feingold. The campaign speech regulation on advocacy ads applies only to radio and TV, not print ads.

The court agreed with the plaintiffs that the ads in question were not advocacy ads or their equivalent and that the government had "failed to demonstrate a compelling interest in regulating the ads." More importantly, it concluded that references to candidates did not necessarily make them into advocacy ads.

J. Gerald Hebert, director of litigation for the campaign finance reform advocates, The Campaign Legal Center, said the court got it wrong, saying the judges did not look at the context of the ads, which were clearly targeted to defeat Feingold, he said,

"The split decision today of the three-judge court in WRTL v. FEC, et al., is obviously a disappointing one," he said, "and we believe it is incorrect as a matter of law.

"The court majority was plainly wrong in refusing to look at the context of the ads. WRTL made plain that its priority was to defeat then U. S. Senate candidate Russ Feingold and its ads were clearly electioneering communications.

He said the Center, which represented McCain and others, expects to appeal the decision. That appeal will go directly to the Supreme Court.

Ruling in WRTL’s favor were judges David Sentelle and Richard Leon.

Dissenting was Judge Richard Roberts, who said the summary judgment was not warranted and that there were still questions about the intent of the ads that had not been explored.