This article returns to the debate over a proper test by collecting relevant ads and test proposals in an Appendix and using these as tools to analyze a test derived from a grassroots lobbying ad (hereinafter the "PBA Ad") that was recognized as a genuine issue ad by defense expert Goldstein in McConnell. Parts I through III provide the context for Part IV, which derives and analyzes a test from the PBA Ad. Part I provides a brief overview of the legislative, rulemaking, and constitutional context. Part II demonstrates that McConnell only decided a facial challenge, leaving as-applied challenges for later. Part III shows that the prohibition is unconstitutional as applied here. Part IV analyzes a test derived from a recognized genuine issue ad.
James Bopp Jr. and Richard E. Coleson, Distinguishing "Genuine" from "Sham' in Grassroots Lobbying: Protecting the Right to Petition During Elections, 29 Campbell L. Rev. 353 (2007).