II. BCRA Section 203 pre- WRTL

BCRA is the federal election campaign law that regulates the financing of federal political campaigns. One of its key provisions bans corporations and unions from spending general treasury funds in federal elections in the time immediately preceding a primary or general election. Shortly after President Bush signed BCRA, Republican Senator Mitch McConnell15 filed a court challenge arguing that major portions of the Act, including section 203, were facially unconstitutional violations of the First Amendment of the U.S. Constitution both for being overbroad and underinclusive.16 In the unanimous portion of McConnell,the Court held that making a distinction between “express advocacy” and “issue advocacy” is not constitutionally required,17 and that within thirty days of a primary or sixty days of a general election, issue advocacy is the “functional equivalent of express advocacy.”18 The Court went so far as to say that it was acceptable for some legally protected ads to be prohibited, because a vast majority of the ads were express advocacy ads and therefore excludable.19 The standard per McConnell thus appeared to be an absolute bar on corporations or unions from using general treasury funds on any advertising that mentioned a candidate running for federal office. The intent of the ad and its timing as it may relate to the legislative calendar were considered irrelevant. Even whether a federal candidate was running unopposed was considered irrelevant.20 Speech was substantially chilled.

As a result of the McConnell Court's denial of this facial challenge, corporations and unions could not air political advertisements on television or radio leading up to the primary and general elections in 2004 or 2006.21 The system was open to an as-applied challenge, but the risks of ignoring the law included criminal penalties.22 Meanwhile, “527 organizations”23 were free to spend wildly. In 2004, the two dozen individuals who gave the most money to 527 organizations donated $142 million, which could be spent by the organizations at will.24 As Justice Antonin Scalia noted in his concurring opinion in WRTL, section 203 did not regulate these groups.25 The system thus permitted some groups to be unfettered in running express advocacy ads, while precluding other groups from airing television and radio ads that were legitimate issue advocacy ads.26