On June 25, 2007, in the case Federal Election Commission v. Wisconsin Right to Life, Inc., the U.S. Supreme Court ruled unconstitutional the use of the federal Bipartisan Campaign Reform Act of 2002 (BCRA) to prevent a nonprofit organization from sponsoring a television advertisement relevant to an upcoming election. The advertisement opposed filibustering of federal judicial nominees in the Senate and urged viewers to contact Sen. Herb Kohl (D-Wis.), who was seeking re-election at the time.

The ruling in Wisconsin Right to Life seemingly opened the door to increased corporate spending for political advertising on broadcast, cable and satellite television. It is expected to have a profound impact on political advertising for the 2008 elections.

Before the Supreme Court’s ruling, the BCRA prohibited corporations from sponsoring "electioneering communications," which are defined as paid advertisements in broadcast, cable or satellite television that refer to a federal political candidate, within 30 days of a primary or 60 days of a general election. The television advertisement that Wisconsin Right to Life wanted to run clearly was illegal under the BCRA because it would have named Sen. Kohl and was to be aired during the statutory blackout period. However, by a 5-4 vote, in an opinion written by Chief Justice John Roberts, the Supreme Court concluded that the First Amendment prohibits the government from banning this kind of special interest television advertising unless the advertisement expressly advocates the election or defeat of a candidate running for office. The court concluded that Wisconsin Right to Life’s proposed television advertisement was not express candidate advocacy. Instead, the court concluded, the advertisement was issue advocacy advertising – highly protected under the First Amendment – that the government may not constitutionally regulate in most circumstances.

The BCRA was enacted in 2002 to close a loophole in federal election campaign law. Prior to 2002, federal law allowed corporations and other private organizations to sponsor television advertisements that named a political candidate so long as the advertising did not cross the line and become express candidate advocacy by explicitly urging the audience to vote for or against a particular candidate. The loophole in the law, many argued, was that corporations could evade the ban on express candidate advocacy by running issue advocacy advertising that featured either flattering or hostile information about a candidate running for office but did not specifically urge the audience to "vote for" or "vote against" the candidate. The BCRA closed the loophole by banning all corporate "electioneering communications" – any advertisements that refer to a candidate – during the final weeks of federal election campaigns.

The impact of the Wisconsin Right to Life case on political advertising in other media remains at issue. Also, whether a specific advertisement constitutes unregulated issue advocacy or impermissible express candidate advocacy remains a critical question for television and other media outlets along with corporations and the communications professionals who prepare their political advertising. In addition, the significance the court’s ruling in Wisconsin Right to Life in the context of state electoral laws remains a subject for debate.

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