On November 20, 2007 the Federal Election Commission approved a new rule (PDF) that will allow labor organizations, corporations and nonprofits to run issue ads during election periods that mention federal candidates, if funding sources for the ads are disclosed. Such ads will be permitted unless they are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate." The rule implements a Supreme Court decision issued last June in FEC v. Wisconsin Right to Life that had overturned a ban on such ads.

Under the new rule, disclosure will be required for broadcast (television or radio) issue ads costing over $10,000 that mention a federal candidate and that run within 30 days of a primary or national convention or 60 days within a general election. Organizations running such ads will have to report to the FEC the dates and amounts of disbursements made for the communications and the name and address of each person who made a donation of $1,000 or more for the ads.

The FEC has also issued an explanation of the rule and the "safe harbor" guidelines for grassroots lobbying ads.

The FEC also considered, but rejected, a proposed rule that would have allowed issue ads without requiring disclosure of the costs and source of funds for exempted ads. Independent Sector submitted comments in support of this approach.

Supreme Court Ruling Allows Issue Ads
The U.S. Supreme Court ruled in a 5-4 decision that certain broadcast issue ads may run during election periods, even if they mention the name of a candidate.

The case challenged the constitutionality of a federal election law that bans corporations, both nonprofit and for-profit, and unions from running broadcast ads that refer to a federal candidate within 30 days of a primary or 60 days of a general election. The Court found the law unconstitutional as applied to the type of issue ads run by Wisconsin Right to Life in 2004.

Wisconsin Right to Life ran broadcast ads in 2004 that urged Senators Russ Feingold (D-WI) and Herb Kohl (D-WI) to oppose filibusters of judicial nominees. At the time, Senator Feingold was campaigning for reelection, but the ads did not refer to his candidacy or the elections.

Writing for the Court, Chief Justice John Roberts stressed the importance of protecting political speech under the First Amendment and said that in deciding whether the ads in this case were the functional equivalent of election ads, the Court gave “the benefit of the doubt to speech, not censorship.”

Independent Sector joined an amicus brief (PDF) filed by OMB Watch and others in this case that focused on the law’s unconstitutional effect on 501(c)(3) organizations that do not have the option of running election ads. The brief argues that the law unconstitutionally restricts 501(c)(3) organizations from speaking out on topics related to their mission and stresses the value of allowing these nonpartisan voices to bring light to otherwise little-known issues of public importance during election times.

Case History
The U.S. Supreme Court heard oral arguments in FEC v. Wisconsin Right to Life (WRTL) on April 25, 2007. The FEC was appealing a District Court ruling that determined that ads run by WRTL should not be considered “electioneering communications.” Read a transcript of the oral argument.

Earlier, in January 2006, the Supreme Court sent the same case back to a lower court for reconsideration. There were two questions before the Court: 1) whether challenges to election law restrictions on grassroots lobbying communications, or issue advertising, are allowed under the Bipartisan Campaign Reform Act (BCRA), and 2) whether WRTL's grassroots lobbying ads should be exempt from certain BCRA restrictions for constitutional reasons. The Court sent the decision back to the Federal District Court in Washington, DC based on the first question (whether challenges will be allowed) and did not address the merits of WRTL’s constitutional challenges to the ban. Read the January 2006 Supreme Court decision (PDF).

Independent Sector joined a coalition of 35 charities in filing an amicus brief in 2005. The coalition included national organizations such as OMB Watch, Alliance for Justice, Center for Lobbying in the Public Interest, and the National Council of Nonprofit Associations, as well as state nonprofit associations including California, Maryland, Michigan, North Carolina, and Pennsylvania.

The brief argues that the rule unconstitutionally restricts nonprofit grassroots lobbying ads and stresses the importance of allowing the full participation of nonpartisan voices in the public debate of important policy issues.

Last Updated: January 2, 2008