	Background and Case History

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits corporate or labor union treasury funds from being spent for "electioneering communications." Supreme Court Decision

		Overview

In a 5 to 4 decision, FEC v. Wisconsin Right to Life, Inc. (WRTL II) , affirming a lower court ruling, the Supreme Court found that Section 203 of BCRA was unconstitutional as applied to the WRTL ads, and that they should have been permissible to broadcast. In applying the standard it developed for as-applied challenges to the ads that WRTL sought to broadcast, the Court determined that the FEC had failed to demonstrate that such ads constituted the functional equivalent of express advocacy because they could reasonably be interpreted as something other than a vote for or against a candidate. In a case currently pending before the U.S. Supreme Court, Citizens United v. Federal Election Commission (FEC) , the constitutionality of the BCRA "electioneering communication" provision is once again under consideration. On March 24, 2009, the Supreme Court heard oral argument in this case and again on September 9, after ordering the parties to file supplemental briefs addressing whether the Court should overrule its earlier holdings in Austin v. Michigan Chamber of Commerce and the portion of its decision in McConnell v. FEC addressing the facial validity of Section 203 of BCRA, the "electioneering communication" prohibition. A decision in this case is expected in early 2010.
Voting 5-4, the U.S. Supreme Court in the 2007 decision FEC v. Wisconsin Right to Life, Inc. (WRTL II) held that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporate or labor union treasury funds from being spent on advertisements broadcast within 30 days of a primary or 60 days of a general election, was unconstitutional as applied to ads that Wisconsin Right to Life, Inc. sought to run. While not expressly overruling its 2003 ruling in McConnell v. FEC, which upheld the BCRA provision against a First Amendment facial challenge, the Court limited the law's application. Specifically, it ruled that advertisements that may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate are not the functional equivalent of express advocacy and, therefore, cannot be regulated.
In a case currently pending before the Supreme Court, Citizens United v. Federal Election Commission (FEC), the constitutionality of the BCRA "electioneering communication" provision is once again under consideration. On March 24, 2009, the Supreme Court heard oral argument in this case and again on September 9, after ordering the parties to file supplemental briefs addressing whether the Court should overrule its earlier holdings in Austin v. Michigan Chamber of Commerce and the portion of its decision in McConnell v. FEC addressing the facial validity of Section 203 of BCRA, the "electioneering communication" prohibition. A decision in this case is expected in early 2010.