September 19, 2008
A Thought on the 60-Day BCRA Window
Back in around 2000, when McCain-Feingold was being debated, I recall that both Richard Briffault and I expressed the view that the 60 day window imposed in BCRA, which prevents corporations and unions from spending their general treasury funds on "electioneering communications" within 60 days of the general election, was too long. In election years, we both argued, important public policy issues (what I termed "genuine issue advocacy") about which corporations and unions might want to run ads could occur in September, with congress in session. This week's financial meltdown is an excellent case in point. Corporations and unions might want to run t.v. or radio ads on the financial bailout, unconnected to the election, but urging Obama or McCain to do something in particular about the crisis. To do so now, they'll have to argue it falls under the WRTL exemption.
But perhaps Congress should have enacted a shorter window, as Richard and I both had advocated.