The Federal Election Commission announced yesterday that it would revise its regulations to account for the U.S. Supreme Court’s decision in the Wisconsin Right to Life case to exempt genuine issue ads from regulation under the McCain-Feingold campaign finance reform law. The FEC’s move is intended to make its rules clearer "in time for the Presidential primaries and caucuses in early 2008."
An important aspect of all this is the regulation of speech, under the guise of campaign reform, that criticizes or lobbies politicians for their policy views during an election campaign, but falls short of express advocacy of the election or defeat of a candidate. In California, the FPPC maintains a broad rule that extends regulation of communications beyond those containing just explicit words of express advocacy. That rule was enjoined in a court challenge as applied to initiative campaigns, but it still exists with respect to candidate elections. The FPPC ought to consider revising its rule consistent with the U.S. Supreme Court’s decision, and add an explicit rule protecting "genuine issue ads" from regulation.