Is the Supreme Court Ready to Overturn the 'Electioneering Communications' Ban?

In March the U.S. Supreme Court heard oral arguments in a case challenging legal restrictions on the advertising and distribution of a documentary that suggested Hillary Clinton would be a terrible president. Today, the last day of its current session, the Court announced that instead of issuing a decision now it will hear new arguments from both sides in a special September session, focusing on whether it should reconsider two precedents dealing with campaign finance regulation. One decision, issued just six years ago, upheld a provision of the 2002 Bipartisan Campaign Reform Act (BCRA) that bans "electioneering communications," defined as messages sponsored by unions or corporations (including nonprofit interest groups) that mention a candidate for federal office and air close to an election. Since the Court already has narrowed the reach of that provision, restricting it to "express advocacy or its functional equivalent," it may now be prepared to overturn the ban completely. The other decision the court plans to re-examine, issued in 1990, upheld a Michigan ban on the use of corporate funds to advocate for or against state candidates. The aim of minimizing corporate influence on elections is the rationale for BCRA's speech restrictions.

Institute for Justice attorney Steve Simpson says:

The Court has set up a blockbuster case about Americans' First Amendment rights to join together and speak freely about politics.  A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech.  This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.

In a new I.J. report (PDF), Duke University political scientist Michael Munger explains how federal and state restrictions on electioneering communications "stifle free speech and civic engagement." In April I analyzed the (first) oral arguments in the Clinton movie case. In 2007 I discussed Wisconsin Right to Life's successful fight against federal censorship of its ads. Other Reason coverage of the federal ban on electioneering communications here.