First Amendment

FEC Drafting Campaign Ad Rule

The Federal Election Commission hopes to have a rule in place before the 2008 primaries that makes clear what kind of issue-oriented ads are permitted under a recent U.S. Supreme Court ruling.

The issue has been hotly debated by election law blawggers who differ on the impact of the ruling, the Washington Post reports. Election law specialist Robert Bauer of Perkins Coie, who writes the More Soft Money Hard Law blawg, believes the opinion is a narrow one. But law professor Richard Hasen of Loyola Law School in Los Angeles, who writes the Election Law Blog, believes the opinion eviscerates longtime bans on corporate-financed campaign ads.

The Supreme Court’s 5-4 decision weakened McCain-Feingold legislation, which had barred corporate or union-sponsored broadcast ads mentioning candidates by name in the weeks before elections. The court said that under the First Amendment, the ads can be banned only if they amount to express advocacy for a candidate.

The Post says the FEC is likely to rely on this quote in the majority opinion by Chief Justice John G. Roberts Jr.:

“A court 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.”

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