The NAM and 3 other organizations sued the Federal Election Commission and the Federal Communications Commission for a permanent injunction against enforcing the new Bipartisan Campaign Reform Act of 2002 (BCRA). The BCRA seeks to ban core political speech by corporations for a period that may range from 30 days to more than a full year before a federal election. The complaint charged that, "Merely using common ways of referring to pending legislation, such as the 'Shays-Meehan' . . . or 'Kennedy-Kassebaum' bills, may expose corporations and labor organizations to criminal penalties." In addition, a fall-back provision is unconstitutional because it prohibits, at all times, companies from financing any broadcast communication that "promotes or supports . . . or attacks or opposes a candidate" and "also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." The NAM suit charged that this language violates core First Amendment rights and due process.The suit also challenged a new provision that expands and obscures the existing ban on corporate speech that is "coordinated" with a candidate, campaign or political party. The provision repealed an existing regulatory definition of "coordination" and instructs the FEC to issue a new regulation that conforms with vague and intrusive standards of "coordination." Another provision expanded company reporting requirements to speech that does not expressly advocate the election or defeat of a candidate, and even required reporting of prospective communications irrespective of whether the communications are actually made.
On 5/2/03, the district court issued a splintered, 1600-page decision striking down the limitations of soft money contributions from corporations, unions and individuals, limiting issue ads if they appear to urge the election or defeat of a candidate, and deciding that the definition of coordination of speech (one of the NAM's issues) was upheld. On May 19, the district court issued a stay of its ruling, reinstating the BCRA. In July, the NAM filed its brief on the merits.
The Supreme Court ruled 12/10/03 that most of the BCRA is constitutional.