HIGH COURT EXPANDS PERMISSIBLE POLITICAL ADS

On June 25, the U.S. Supreme Court significantly narrowed the types of political issue ads prohibited before elections. The change applies to TV, radio, cable and satellite.

Lawyers may debate the full meaning of the complex 5-4 ruling in Federal Election Commission (FEC) v. Wisconsin Right to Life.  But this much seems clear: corporations and labor unions are likely to be requesting more time for political issue ads in the 30 days before primaries and 60 days before general elections.

The reason?  Unions and corporations will now be able to use their own general treasury funds, not just political action committee (PAC) money, to buy time for issue ads that name federal candidates, as long as the ads do not directly advocate their election or defeat.    

New groups may form to take advantage of the change, while existing groups may, in effect, tap a new source of funding.

The decision does not affect PACs, even corporate or union ones. Subject to federal contribution limits, they can run ads directly advocating victory or defeat for federal candidates.

The impact of the ruling may be felt soon.

An unprecedented number of states have already moved their primaries to early 2008 and more may follow. For the earliest primaries, the 30-day period affected by the ruling starts in December 2007.

The law before and after the ruling

Before: In 2002, Section 203 of the “Bipartisan Campaign Reform Act”—also known as “McCain/Feingold” for its two main Senate sponsors—prohibited corporations or unions from running ads or programs that (a) refer to a federal candidate where the candidate is running, and (b) air 30 days before a federal primary or 60 days before a general election.  

This expanded a prior ban on ads that expressly supported or opposed federal candidates with “magic words” like “vote for X” or “defeat Y.” 

Corporations had avoided that prohibition with “issue ads” supporting or opposing a local federal candidate indirectly, without “magic words.”

For example, ads attacked a named federal candidate’s qualifications and, without saying “vote against,” urged voters to tell the candidate of their displeasure with his or her position on an issue.

Section 203 was designed to stop such “functional equivalents” of support and attack ads.

In 2003, the Supreme Court upheld the constitutionality of Section 203 in general, or “on its face.”

After: Focusing on the law as applied to 2004 radio ads of Wisconsin Right to Life, a reconstituted Supreme Court reached a different result last month.

In effect, the court returned to 2001, when only “express advocacy” for or against federal candidates was prohibited. 

Specifically, the June decision held that courts “should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

In applying this new test, courts are to look only at the ad language itself, not the context, timing or speaker intent.

The majority opinion by Chief Justice Roberts applied this new approach.

He found the Wisconsin ads to be protected by the First Amendment because they urged voters to contact Sen. Feingold, who was running for re-election, about Senate approval of judges nominated by President Bush.

The Chief Justice dismissed arguments that the ads’ references to the sponsor’s Web site, where visitors could sign up for e-alerts opposing Feingold’s reelection, put the ads in the prohibited category.

“Any express advocacy on the website, already one step removed from the text of the ads themselves, certainly does not render an interpretation of the ads as genuine issue ads unreasonable,” Roberts wrote.

Some points for TV to heed in the ruling’s wake:

1.  It appears that the only corporate ads still prohibited by Section 203 are those that ask voters explicitly, during the pre-election periods in the federal candidate’s district, to vote for or against the specific candidate. 

2.  In enforcing campaign finance laws such as Section 203, the FEC holds providers of the ads—not broadcasters or multichannel operators—responsible for violations. A broadcaster who thinks an ad is prohibited can refuse to run it because there is no requirement to air issue ads by non-candidates. 

3. Whatever the volume of corporate requests, stations must honor the “reasonable access” rights of federal candidates and their authorized campaign committees to purchase airtime.  (By definition, corporations and unions cannot be authorized candidate campaign committees). 

4. Candidates for state and local office are also a factor. They lack federal candidates’ right to time, but stations need to decide which state and local contests to sell time to.

5. Once time is sold to any candidate, federal or not, opposing candidates for the same office are entitled to “equal opportunities.”

6. For issue ads by non-candidates, stations continue to have broad discretion. They can choose to run them or not. There are no rate restrictions, nor equal opportunity requirements for opponents. Stations may censor the content because they can be held liable for defamatory, false or other statements. There is no liability insulation as for candidate “uses” where the candidate appears in the ad for at least four seconds.

7. The June ruling does not change FCC political broadcast rules. In particular, public file and recordkeeping for political ads are not affected by the decision.

Also noteworthy for upcoming elections: the FCC Media Bureau seeks public comment by Aug. 6 about whether stations’ lowest unit charges to candidates must reflect the prices of time sold by stations through Internet sales programs. Read the public notice (Word).

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C. communications lawyer and the principal in the Law Office of Michael D. Berg, appears monthly. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.

Note: This article provides general guidance only and is not a substitute for individualized legal advice for particular situations.