Constitutionality of Bipartisan Campaign Reform Act of 2002.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 The provision repealed an existing regulatory definition of "coordination" and instructs the FEC to issue a new regulation that conforms with vague and intrusive standards of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. An appeal to the Supreme Court was filed. On May 19, the district court issued a stay of its ruling, reinstating the BCRA.