This case came to the Supreme Court in 2006, and it held that, even though the Bipartisan Campaign Reform Act (BCRA) had been upheld on initial challenge, its application in specific factual situations can still be challenged on a case-by-case basis. Wisconsin Right to Life did so, challenging the Section 203 bar on corporations using general corporate funds to pay for targeted broadcast communications that reference a federal candidate within thirty days of a primary election or within sixty days of a general election. A D.C. district court ruled that the law unconstitutionally interferes with First Amendment rights to engage in grassroots advertising campaigns, whereby candidates are mentioned but the focus of the ads is on issues pending in Congress.
The Supreme Court decided 5 to 4 on June 25, 2007 that that section of the law infringes on this group's right to tell the public about their senators' positions on filibustering judicial nominations. Issue advocacy, or expressing a position on an issue, as opposed to express advocacy of the election or defeat of a particular candidate for federal office, is protected by the First Amendment. Chief Justice Roberts' opinion held that issue advocacy may include the mention of a candidate's name, as long as the advocacy doesn't cross over to becoming express advocacy or its "functional equivalent." Ads that urge the listener to call Senator X about legislation are protected, since they involve political speech that may only be restricted to further a compelling interest and in a way that is narrowly tailored to achieve that interest. An ad would be equivalent to express advocacy, and subject to regulation, only if the ad "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Although this test generated some debate among the Justices, future cases will determine whether it will be workable.
This case is important for any business that engages in issue advocacy. The NAM supports the result. Over the years, the line between permissible issue advocacy and impermissible express election advocacy has been reasonably clear, but the BCRA provision at issue prohibited what had been permissible issue advocacy. This is important to organizations like the NAM whose objectives in part are to inform citizens about the impact of legislative proposals on manufacturing, jobs and the economy, even during campaign season.