Here is the case, just decided, that the holidays bring, though not with joy to all. 

     A three judge district court has determined that certain ads proposed by Wisconsin Right to Life, urging an end to the filibuster of of federal judicial nominees, were exempt from the pre-election broadcast prohibitions of BCRA. 

     The Court examined the text of the ads and found that certain elements--such as a reference to a genuine public policy issue but not to an election or candidacy, and the absence of language promoting or attacking elected officials--required the conclusion that the ad did not have, necessarily, the intent to influence an election and could not constitute "express advocacy."  Without this intent, any hypothesized effect alone was insufficient to bring the ad within constitutionally permissible regulation. 

     Among the more notable statements in the opinion is the Court's rejection of any assumption that "the speculative conjecture of experts can actually project the 'likely' impact of a given ad on the electoral process."  This should not be news, but it will be treated as such, and most unwelcome, in some corners of the professional and expert reform community.

     With this decision, Supreme Court review is certainly a possibility.  One wonders: would it not have been better if, as urged and supported by some Commissioners, the FEC had proceeded with the rulemaking to define the terms of any such exemption? 

     More to follow, tomorrow. 

Bob Bauer