Electioneering involves actively advocating for or opposing a political candidate or party in an election. It ranges from canvassing to advertising nationally on television. Electioneering through advertising has sparked numerous constitutional controversies.

The Bipartisan Campaign Reform Act of 2002 (BCRA) regulates contributions and expenditures for electioneering purposes. The BCRA amended the Federal Election Campaign Act of 1971 (FECA). In Buckley v. Valeo (1976), the Supreme Court had interpreted FECA as regulating “express advocacy” by corporations and unions.

The BCRA narrowed the express advocacy standard by barring corporations and unions from contributing or spending general treasury funds for “electioneering communications,” defined in the act as advertisements that refer to a specific candidate for federal office, are made within 60 days of a general election or 30 days of a primary election, and (for federal candidates other than the president or vice president) are targeted at the electorate.

Court upholds most of BCRA

Several interest groups challenged this regulation of political speech, arguing that many of the BCRA’s provisions, including its restrictions on electioneering, violate the First Amendment. In 2003 in McConnell v. Federal Election Commission, the Supreme Court upheld most provisions of the BCRA, including limits on electioneering. Despite the Court’s decision, advocacy groups continue to challenge the constitutionality of the act as applied to their electioneering efforts.

The major controversy in post-McConnell electioneering communications cases has been delineation between electioneering and issue-related speech. According to the BCRA, electioneering is distinguishable from general issue related speech, which is afforded significant protection under the First Amendment, because it involves a “clearly identifiable candidate.” The distinction between these two forms of political speech has proved blurry, however, thus sparking litigation.

In 2006 in Wisconsin Right to Life, Inc. v. Federal Election Commission, a three-judge panel of the federal district court in the District of Columbia held that a group’s proposed anti-filibuster advertisements asking listeners to contact specific senators running for reelection did not violate the BCRA because although the ads mentioned particular candidates, they did not endorse or oppose anyone.

The decision was appealed to the Supreme Court, which granted review in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), and was upheld. The Court ruled that the group’s First Amendment rights were violated by the application of the BCRA.

State regulation of electioneering has also given rise to litigation. In Alaska Right to Life Committee v. Miles (2006), the 9th U.S. Circuit Court of Appeals upheld a definition of “electioneering communication” in Alaska’s campaign finance law that was slightly broader than the BCRA’s definition.

To this point, federal courts have found the application of most post-McConnell federal and state electioneering laws constitutional. In another related area of controversy, the Supreme Court upheld 100-feet campaign-free zones around polling booths in Burson v. Freeman (1992).

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