Christopher N. Slagle
Bricker & Eckler LLP
June 2007

Full text of the F.E.C. decision

On Monday, June 25, 2007, the U.S. Supreme Court issued its long-awaited ruling in the F.E.C. v. Wisconsin Right to Life campaign finance litigation. The Court's 5-4 decision upholds the airing of "electioneering communications" by independent, grassroots organizations 30 days prior to federal primaries and within 60 days of general elections. Various organizations have used these "electioneering communications" or "issue advocacy" ads, which only mention the names of federal candidates, without advocating for or against their election to federal office.

Wisconsin Right to Life, in 2004, paid for and began airing such "issue advocacy" ads asking Wisconsin residents to call the state's two U.S. Senators, Russell Feingold and Herb Kohl, to oppose a possible filibuster to President Bush's judicial nominees. The Bipartisan Campaign Reform Act of 2002, better know as McCain-Feingold, after the two U.S. Senators sponsoring the legislation, prohibited "electioneering communications" that even mention the name of a candidate for federal office 30 days before a primary or 60 days before a general election. As Senator Feingold had declared his intention to seek reelection in the November 2004 general election, the Wisconsin Right to Life "issue advocacy" ads were in violation of McCain Feingold.

The Supreme Court created a constitutional safe harbor under federal campaign finance laws for genuine issue ads -- or those ads that, under no reasonable interpretation, appeal for voters to vote for or against a specific candidate. Only advertisements specifically advocating for or against a specific candidate can be subjected to the McCain-Feingold blackout periods. Otherwise, the presumption is such that issue advocacy advertising is protected under the First Amendment.

To learn more about the F.E.C. v. Wisconsin Right to Life decision, please contact Christopher N. Slagle at 614.227.8826 or cslagle@bricker.com. Additional resources and materials relating to campaign finance or general election law issues can be found at the Bricker & Eckler Election Law and Campaign Finance Resource Center.