Test case could flood airwaves with issue ads

With the election heading into its heated final weeks, opponents of campaign finance regulation are working on several fronts to loosen restrictions on “issue ads” — campaign-related advertisements whose financial backers aren’t disclosed.

Most of the ads they want to air criticize Democratic nominee Barack Obama’s record on abortion. But if they succeed, all businesses, unions and political nonprofit groups will have more freedom to air such ads.

{mosads}James Bopp Jr., the Republican lawyer from Indiana who challenged the 2002 campaign finance law before the Supreme Court and won on the question of issue ads, has filed two lawsuits challenging rules the Federal Election Commission adopted in the wake of that ruling. And Bopp has asked the FEC for clearance to run another such ad on behalf of his longtime client, the National Right to Life Committee (NRLC).

“There’s definitely a multi-pronged attack going on,” said Paul Ryan, an attorney with the Campaign Legal Center, which is opposing Bopp’s efforts to further loosen the law. “The lawsuit’s attempt to break new legal ground, and the advisory opinion, seeks to clarify the victory he won in the Supreme Court.”

Some of the ads have already run, but they were paid for by political action committees (PACs), which is clearly legal. Some were run by nonprofit corporations, which are risking legal sanctions from the FEC because the ads were paid for directly from general funds. Bopp and his clients contend the restrictions on the ads are vague and unconstitutional.

“Non-PACs should be able to run any kind of issue advocacy ads as long as they don’t call for a vote for or against a candidate,” Bopp said. “You should be able to discuss issues as the Supreme Court ruled.”

The 2002 legislation, authored by Obama’s Republican opponent, Sen. John McCain of Arizona, along with Sen. Russ Feingold (D-Wis.), blocked such ads within two months of a general election and 30 days before a primary.

But last year the Supreme Court ruled the restrictions on business and union advertising were unconstitutional.

The FEC wrote rules after that Supreme Court ruling in order to be compliant with it. The rules said issue ads are permissible in the run-up to an election, as long as they focus on public policy, don’t mention an election, political party or opposing candidate or opine on a candidate’s character, qualifications or fitness for office.

But Bopp said those rules don’t comply with the Supreme Court ruling, and, after the rules were finalized, the FEC went dormant because a confirmation stalemate in the Senate left it without a quorum. It was reconstituted in July when the Senate confirmed five of President Bush’s appointees.

Since then, commissioners haven’t formally dealt with “issue ads.” So the cases could show whether the new panel will take a deregulatory bent, or ardently defend the regulations the previous commission put into place after the Supreme Court decision last year.

NRLC asked for clearance for its advertisement in a request for an expedited “advisory opinion” from the FEC to get a decision before the Nov. 4 election. The agency has not said whether or not it will accelerate its decisionmaking process for the group.

The NRLC ads, which have already been aired by the group’s PAC, say Obama accused the group of “lying” about his record on abortion in the Illinois legislature. The group says an independent fact-checking group verified its claims, and the ad demands that Obama apologize.

Though the FEC hasn’t agreed to expedite its ruling, a North Carolina federal judge did. Bopp filed a case Oct. 3 to block FEC enforcement against the Committee for Truth in Politics for its ad criticizing Obama. The final briefs are due Wednesday and there will be a hearing Thursday.

The ruling in that case could also have an effect in the battleground states of Pennsylvania and Wisconsin.

The ads are already running in all three states. The suit admits the ads violate FEC rules, but says those rules are unconstitutional.

When that case was filed, Bopp had already lost a bid to get a preliminary injunction against the FEC rules in federal court in Virginia for another recently formed group called The Real Truth About Obama. The group sought to air criticisms of Obama during the shows of conservative radio hosts Sean Hannity and Rush Limbaugh.

U.S. District Judge James R. Spencer wrote Sept. 24 that if he were to grant the injunction, “the next two months of election law and enforcement would likely become a ‘wild west’ of electioneering communication and contributions.”

The group has filed an amended complaint and the case is continuing.