Cases before three-judge courts in Washington D.C, but originating in Wisconsin and Maine, have challenged BCRA’s limits on t.v. or radio ads broadcast within 60 days of a general federal election or 30 days of a primary that feature a candidate running for federal office and are targeted at the relevant electorate. These ads cannot be paid for with corporate or union money; these entities instead must use a PAC.
The question presented in these cases—and recently ducked by the Supreme Court—is whether such ads that are genuinely about issues should fall under a constitutionally mandated exemption from this rule. (I was struck in reading this post on MyDD (which includes the line: “Tell Senator Collins/Snowe that no cheap partisan stunt is worth exposing our troops to torture, alienating our allies, and abandoning the Constitution”) that when Congress holds these sessions close to the election, drawing the line between genuine and sham issue advocacy will be difficult indeed. Of course, the MdDD post is not subject to BCRA’s provisions because, among other reasons, it is Internet-based communications.)
In any case, these two cases are before different three-judge panels, with direct appeal to the U.S. Supreme Court (no D.C. circuit or other intermediate review). Yesterday, a three judge court dismissed on justiciability grounds the complaint in Christian Civic League v. Maine, ruling the issues were unripe or moot. While I expect the plaintiffs to yet again seek Supreme Court review, I expect this case will be summarily affirmed by the Court. Not because it presents unimportant issues—the issues are very important. But because the lead case is likely to be the three-judge court opinion in the Wisconsin Right to Life case, which should come within the next few months (oral argument took place earlier this month). There is simply a much better factual record in this case for the Court’s review. Depending upon timing, this could still be heard by the Supreme Court in the October 2006 term, though the Justices would have some breathing room before the 2008 election season BCRA rules kick in.