Court Strikes Down Blanket Issue Advocacy Ban in Campaign Finance Law - May 5, 2003 Vol. 4 No. 9

May 5, 2003 Vol. 4 No. 9:

Published: 05/05/2003

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Court Strikes Down Blanket Issue Advocacy Ban in Campaign Finance Law

On May 2 a special federal three-judge panel ruled some parts of the Bipartisan Campaign Reform Act of 2002 (BCRA) unconstitutional, while upholding others. There is good news for nonprofits engaged in genuine issue advocacy, since the court struck down the blanket ban on broadcasts that refer to federal candidates within 60 days of a federal election or 30 days of a primary.

The court upheld BCRA's "backup" definition of banned issue ads, which prohibits broadcasts that promote, support, attack or oppose federal candidates even if they do not expressly advocate a vote for or against a candidate. The court struck down the remainder of the backup definition, which banned ads that would be "suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate" as unconstitutionally vague. The case will immediately go to the Supreme Court.

In striking down the primary definition of banned issue ads, the court held that the ban, "… which regulates communications referring to clearly identified federal candidates based upon when and where they are broadcast, rather than their effect on federal elections, sweeps so broadly that it captures too much First Amendment protected speech …".

All three judges in the case wrote their own opinions, and all signed an Order that outlines how the court ruled on specific provisions of BCRA and refers to which judge's opinion discusses the majority's rationale for its action. The court's ruling is available online. OMB Watch will post a summary of the provisions of the ruling that impact nonpartisan nonprofits in the next few days.