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Political Advertising Law


Welcome to the Political Advertising Law Web Site. This is the main page, which contains an article examining the impact of the Bipartisan Campaign Reform Act of 2002 (BCRA) as well as other links to significant information about this topic.

Until recent years, political advertising was considered nearly sacrosanct in the United States. Historically, this form of advertising was relatively rarely the subject of laws, rules or court decisions. And for good reason: The free-speech clause of of the First Amendment to the U.S. Constitution provides that, "Congress shall make no law . . . abridging the freedom of speech." And this applies at its highest level to candidates running for public office.

However, the protections afforded by the First Amendment have clearly eroded in recent years. Perhaps the most significant threat to the protection afforded political advertising is the Bipartisan Campaign Reform Act of 2002 (BCRA) which was signed into law by President George W. Bush on March 27, 2002. The BCRA was known as the McCain-Feingold bill after its chief sponsors, Senator John McCain and Senator Russ Feingold.

After the measure passed in the House, the Senate passed the measure by a vote of 60-40.

This sweeping measure contained a number of provisions intended to remove money from politics. For example, the BCRA, eliminated all soft money donations to the national party committees. Our focus in this article is on the political advertising aspects of this law.

Shockingly, on December 10, 2003, the U.S. Supreme Court upheld restrictions contained in the BCRA on "issue ads" in the case of in McConnell v. Federal Election Commission (FEC). (For the full-text of the U.S. Supreme Court decision in McConnell v. Federal Election Comm'n (02-1674) 540 U.S. 93 (2003), 251 F. Supp. 2d 176, 251 F. Supp. 2d 948, click here.)

The First Amendment to the U.S. Constitution reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Nevertheless, the U.S. High Court--by the narrowest of margins, 5-4--concluded that Congress may make law abridging the freedom of speech in this case. Supreme Court Justices John Paul Stevens and Sandra Day O'Connor wrote the majority opinion in McConnell v. Federal Election Comm'n. Stevens and O'Connor were joined by David Souter, Ruth Bader Ginsburg and Stephen Breyer. Voting to uphold the First Amendment's protections in this case were Anthony Kennedy, Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas. (For an excellent article about this case, see "So Much for Free Speech," By Robert J. Samuelson, August 25, 2004.)

Essentially, by passing the BCRA, Congress intended to suppress "issue ads" by "banning the use of corporate or union money to pay for broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election. Any ads within those periods that identify a federal candidate must be paid for with regulated, hard money or with contributions exclusively made by individual donors." (Source: Wikipedia, "Campaign finance reform".)

Aside from delivering a sledge-hammer blow to the free-speech clause of the First Amendment, the BCRA has been a stunning failure of epic proportions in its core mission: slowing the flow of money into election campaigns. In the presidential election prior to the signing of the BCRA, the 2000 presidential election cost $343.1 million. In the next presidential election after BCRA became law, the 2004 election cost $717.9 million. And now experts predict the 2008 presidential election will cost over $1 billion. (Source: "Dialing for Dollars," U.S. News and World Report, March 26 - April 2, 2007 and data from the Center for Responsive Politics.)

Most recently, however, on June 25, 2007, the U.S. Supreme Court--again by the narrowest of margins--voted 5-4 to allow issue ads that air on television close to an election. Here is a link to the full text of this important Supreme Court decision in FEC v. Wisconsin Right to Life, along with McCain, United States Senator, et al. v. Wisconsin Right to Life, Inc., No. 06-970, also on appeal from the United States District Court for the District of Columbia.

Check back here from time to time as future articles will examine political advertising laws and their impact of our election process. For example, click here for the article, Impact of Political Advertising Law on Election 2008, that appeared in a past issue of Advertising Compliance Service. We will also examine such controversial political ads from past elections as the classic "Daisy Girl" political ad from Lyndon Johnson's 1964 presidential campaign, the "Willie Horton" political ad that ran during the 1988 presidential campaign, and the more recent Michael J. Fox stem cell political ad.

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JLCom Publishing Co., LLC is the publisher of Advertising Compliance Service. For over 30 years, Advertising Compliance Service has been the authoritative, comprehensive source of information for advertising lawyers as well as advertisers and advertising agencies--and their attorneys--in the advertising law area. In-house counsel and outside counsel alike regularly rely on Advertising Compliance Service. One of the 27 areas regularly covered by this newsletter/reference service is Tab #20, Political Ads.

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