Wisconsin Right to Life, Inc. v. FEC

On June 25, 2007, the Supreme Court upheld a district court ruling that the electioneering communication (EC) financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional "as applied" to ads that Wisconsin Right to Life, Inc. (WRTL), a 501(c)(4) nonprofit corporation, intended to run before the 2004 elections. The Supreme Court concluded that the EC financing restrictions are unconstitutional as applied to these ads because:

• The ads are not express advocacy or its functional equivalent; and
• The Court found no sufficiently compelling governmental interest to justify burdening WRTL’s speech.

Background

WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the prohibition on the use of corporate funds to pay for ECs unconstitutional as applied to what it calls "grassroots lobbying" communications planned for the period before the 2004 elections. After the district court both denied WRTL's motion for a preliminary injunction and dismissed WRTL's complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL's "as applied" challenge. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL’s 2004 ads.

Under the Federal Election Campaign Act ("the Act") and Commission regulations, as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), an electioneering communication is defined, with some exceptions, as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate and is publicly distributed for a fee within 60 days before the general election or 30 days before a primary election or a nominating convention for the office sought by the candidate. 2 U.S.C. § 434(f)(3) and 11 CFR 100.29. Corporations may not make electioneering communications using their general treasury funds.[1] 2 U.S.C. §§ 441b(a)-(b) and 11 CFR 114.2 and 114.14.

The plaintiff’s activities involved paying for broadcast advertisements in 2004 that asked Wisconsin listeners to contact U.S. Senators Kohl and Feingold and to ask them to vote against anticipated filibusters of federal judicial nominees. Senator Feingold was up for re-election in 2004 and some of the intended ads would have run during the EC periods for Wisconsin’s primary and general elections. According to WRTL, because their ads expressed an opinion on pending Senate legislative activity, urged listeners to contact their Senators and did not refer to any political party or support or attack any candidate, they constituted bona fide grass-roots lobbying. They argued that these ads were not the "functional equivalent of express advocacy," and, thus, there was no constitutional justification for the prohibition on corporate payments for these ads or for requiring the ads to be paid for through a political action committee. See McConnell v. FEC. WRTL asserted that in this instance the prohibition on corporate-sponsored electioneering communications unconstitutionally burdened the rights of free speech, free association and petitioning the government--all in violation of the First Amendment.

WRTL originally filed suit in the U.S. District Court for the District of Columbia on July 28, 2004, asking the court to find the ban on corporate treasury funding of ECs unconstitutional as applied to what it called “grassroots lobbying” communications planned for the period before the 2004 elections. After the district court denied WRTL’s motion for a preliminary injunction and dismissed its complaint, WRTL appealed to the Supreme Court. On January 23, 2006, the Supreme Court vacated the judgment and remanded to the district court to reconsider the merits of WRTL’s “as applied” challenge. The district court held a hearing on September 18, 2006, regarding motions for summary judgment as to WRTL’s 2004 ads.

"As applied" constitutional challenge

Supreme Court decision

The Supreme Court issued a decision upholding the District Court ruling that the EC financing restrictions of the Bipartisan Campaign Reform Act were unconstitutional as applied to WRTL’s ads. The Supreme Court also rejected the FEC’s argument that the case was moot.

Mootness. The FEC argued that the cases involving WRTL’s ads were moot because the 2004 election has passed and WRTL has no continuing interest in running its ads. The Court rejected this argument, noting that the case fits within the established exception to mootness for actions “capable of repetition, yet evading review.” The Court noted that WRTL could not have obtained complete judicial review of its claims in time to air its ads in the period prior to the 2004 election and that WRTL had credibly claimed that it intended to run materially similar ads during future EC periods.

Electioneering communication financing restrictions unconstitutional “as applied” to WRTL ads. The Court rejected the FEC’s argument that WRTL has the burden of demonstrating that the EC provisions are unconstitutional as applied to its ads. The Court reasoned that the EC provisions burden political speech and, as such, are subject to strict scrutiny. Therefore, the government must prove that applying the EC provisions to WRTL’s ads “furthers a compelling governmental interest and is narrowly tailored to achieve that interest.” The Court stated that while in McConnell v. FEC the EC provisions had satisfied the standard of strict scrutiny for the regulation of express advocacy and its functional equivalent, the Court in McConnell did not formulate a test for future as-applied challenges. The Court rejected the use of an intent-and-effect test for determining when an ad is the functional equivalent of express advocacy and instead explained that the inquiry should focus on the substance of the communication.

The Court found that WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific federal candidate and, as such, did not constitute the functional equivalent of express advocacy. The Court noted that the content of the ads was consistent with that of a “genuine issue ad” focused on a specific legislative issue and urging the public to take action regarding that issue. Also, the Court noted, the ads’ content lacked “indicia of express advocacy” because they made no mention of “an election, candidacy, political party, or challenger . . . and [took no] position on a candidate’s character, qualifications, or fitness for office.”

In the decision, the Court cited its long recognition of the governmental interest in preventing corruption and the appearance of corruption in elections. The Court acknowledged that McConnell had upheld the EC financing restrictions on their face, but the Court determined that that anti-corruption interest did not justify application of the restrictions to the advertisements proposed by WRTL.

The Court concluded that because WRTL’s ads are not express advocacy or its functional equivalent, and because the Court found no compelling governmental interest to justify the burden on WRTL’s speech, the EC financing restrictions are unconstitutional as applied to these ads. The Court also noted that this case does not present the occasion to revisit McConnell’s facial upholding of the EC financing restrictions.

Summary judgment motion

On December 21, 2006, a three-judge panel of the United States District Court for the District of Columbia issued a 2-1 decision granting Wisconsin Right to Life’s motion for summary judgment, finding the electioneering communications provisions unconstitutional “as applied” to three broadcast ads WRTL had intended to run before the 2004 election. Based on the court’s decision, the ads would not have been subject to the ban on the use of corporatetreasury funds to finance ECs.

The three communications in question were two radio advertisements and one television advertisement WRTL had planned to run before the 2004 primary and general elections concerning anticipated filibusters of President Bush’s federal judicial nominees. The ads encouraged Wisconsin listeners and viewers to contact their Senators (Senators Feingold and Kohl) to urge them to oppose the filibusters. Senator Feingold was up for reelection in 2004, but Senator Kohl was not.

The three-judge panel considered the “as applied” challenge to the EC provisions based on two main arguments: whether the ads contained express advocacy for or against a federal candidate or the “functional equivalent” of express advocacy; and, if they did not, whether the government had demonstrated a compelling interest in regulating these ads.

Express Advocacy. To determine whether WRTL’s 2004 anti-filibuster ads contained express advocacy, or its functional equivalent, the court considered only the text and images of the ads and declined to consider contextual factors bearing on the ads’ purpose or likely effect. The court’s evaluation was based upon whether the ads: 1) described an issue that was or “likely” soon would be a “subject of legislative scrutiny”; 2) referred to the prior voting record or current position of the named candidate on the described issue; 3) exhorted the audience to do anything other than contact the candidate about the described issue; 4) promoted, attacked, supported or opposed the named candidate; and 5) referred to an upcoming election, candidacy or party of the candidate.

Considering those five factors, the court found that the anti-filibuster ads did not contain express advocacy or its functional equivalent and thus were not “intended to influence the voters’ decisions.” The court noted that the ads did not mention an election, a candidacy or the individual’s “fitness for office.” While the ads discussed the filibuster issue, the court stated that they did not reference the Senators’ voting records, current or past, on this issue, and that they did not promote, attack, support or oppose either Senator. Additionally, the court noted that the ads asked the audience to contact both Senators, not just the Senator up for reelection.

Government Interest in Regulating Issue Ads. In McConnell, the Supreme Court found that the compelling government interest in regulating the communications covered by the definition of electioneering communication was sufficient to uphold the statute on its face. However, the district court stated that by permitting “as applied” challenges to the provisions of the BCRA, the Supreme Court left open the question as to whether there is a compelling government interest in regulating “genuine issue ads” covered by the statute. In light of its finding that WRTL’s anti-filibuster ads did not contain express advocacy, or its functional equivalent, the three-judge panel evaluated the government interest in regulating these ads. The court found no compelling government interest and rejected the argument that the need for a “bright line” test is a basis for regulating “genuine issue ads,” noting that the “virtues of the bright line test cannot alone justify regulating constitutionally protected speech.”

Motion for Temporary Restraining Order and Preliminary Injunction District Court Decision

On September 13, 2006, a three-judge panel of the U.S. District Court for the District of Columbia denied WRTL's motion for a temporary restraining order and preliminary injunction that would have prevented the Commission from enforcing the corporate financing restrictions applicable to ECs with regard to certain WRTL broadcast ads to be run before the 2006 primary and general elections.

On August 25, 2006, the three-judge court rejected WRTL’s motion for a temporary restraining order and preliminary injunction regarding its planned 2006 ads, finding that WRTL had not demonstrated that it was entitled to relief under the four applicable factors: (1) whether WRTL had a substantial likelihood of success on the merits; (2) whether WRTL would suffer irreparable harm in the absence of an injunction; (3) whether an injunction would cause substantial injury to the other party; and (4) whether the public interest would be furthered by the injunction.

Substantial likelihood of success on the merits. The court found that WRTL’s constitutional claim failed to “tip the scale in favor of” an injunction. The court stated that the restrictions on corporate financing of ECs are presumed constitutional. In McConnell, the Supreme Court discussed the fact that a corporation has alternative methods of communicating its messages when the Court concluded that the EC restrictions are facially constitutional. In this case, the Defendants argued that the prohibition is consistent with the First Amendment because, among other things, WRTL retains these alternative methods of communication. Although the district court is currently considering whether these alternatives are in fact constitutionally adequate, the three-judge court found that it could not now conclude that WRTL would succeed on the merits based on an incomplete record.

Whether plaintiff would suffer irreparable harm if an injunction was not granted. The court concluded that the actual limitation on WRTL’s freedom of speech is not nearly as great as WRTL had argued. While the court agreed that, absent a preliminary injunction, WRTL has forever lost the opportunity to use its general treasury funds to run the planned ads, it noted that WRTL is not precluded from forwarding its message in other ways. The EC provisions do not prohibit the speech in question; they only require that corporations and labor organizations engaging in such speech channel their spending through PACs. WRTL can also communicate its message though non-broadcast media, such as newspapers and the Internet. Moreover, the court noted that WRTL could spend unlimited corporate funds to lobby via broadcast ads for the enactment of the Child Custody Protection Act so long as the ads omit any clear references to Senator Kohl.

Whether an injunction would cause substantial injury to other parties. It is the statutory duty of the FEC to enforce the campaign finance law. The court found that enjoining the FEC from performing its statutory duty would constitute a substantial injury to the agency that would be far greater than “WRTL’s harm from an FEC administrative investigation which carries little threat of imminent or certain sanction.”

Whether the public interest would be furthered by the injunction. Finally, the court found that granting the injunction would not further the public interest. The Supreme Court has determined that the EC prohibition serves compelling governmental interests. McConnell, 540 U.S. at 205. The three-judge court noted that the Supreme Court has made it clear that “as applied challenges,” such as WRTL’s, are permitted and has commanded the district court to consider WRTL’s case on the merits with regard to its planned 2004 ads. However, the three-judge court did not find that these actions, without more, eliminated the presumption of the prohibition’s constitutionality or that the balance of hardships favored WRTL in this case.

Supreme Court decision

On January 23, 2006, the U.S. Supreme Court issued a per curiam decision vacating the U.S. District Court for the District of Columbia’s judgment and held that the McConnell decision did not preclude “as applied” challenges to the EC restrictions in the BCRA. The Supreme Court asked the District Court to reconsider the merits of WRTL's challenge “as applied” to certain activities that WRTL describes as grassroots lobbying.

District court decision

On May 9, 2005, a three-judge panel of the U.S. District Court for the District of Columbia dismissed this case, with prejudice, for the same reasons given in the court’s August 17, 2004, decision to deny the plaintiff’s request for a preliminary injunction. The plaintiff appealed this decision to the Supreme Court on May 23, 2005.

Supreme Court decision

On September 27, 2005, the Supreme Court agreed to hear WRTL's challenge to the ban on corporate financing of electioneering communications. The plaintiff has asked the Court to find the ban unconstitutional as applied to certain grass-roots lobbying activities. Earlier this year, a three-judge panel of the U.S. District Court for the District of Columbia had dismissed this case, with prejudice, finding that the Supreme Court’s decision in McConnell precluded the plaintiff’s challenge.

On January 23, 2006, The Supreme Court issued a per curiam decision vacating the District Court’s judgment in this case based on the district court’s incorrect interpretation of McConnell.

The district court reasoned that in upholding the EC provisions of BCRA in McConnell, the Supreme Court left no room for the kind of “as applied” challenge brought by WRTL. According to the District Court’s interpretation, McConnell upheld all applications of the primary definition of electioneering communication, suggesting little likelihood of success for an “as applied” challenge to a particular application of that definition. The District Court determined that this deliberate upholding of “all applications” stands in contrast to the Supreme Court’s explicit acknowledgment that other parts of the statute, which it also upheld, might be subject to “as applied” challenges in the future.

The Supreme Court, however, concluded that the District Court misinterpreted the relevance of McConnell's statement that it was upholding “all applications of the primary definition of electioneering communications.” The Supreme Court clarified that McConnell, in upholding the primary definition against a facial challenge, “did not purport to resolve future as applied challenges,” such as the one brought forth by WRTL. The Supreme Court vacated the judgment in the case and remanded it to the District Court to reconsider the merits of WRTL’s as applied challenge in the first instance.

WRTL filed a motion to reinstate the parties’ prior cross-motions for summary judgment on January 24, 2006.

Motion for Preliminary Injunction

On July 29, 2004, the court granted the plaintiff's unopposed motion to have the case heard by a three-judge panel, and also granted its motion to expedite proceedings on the request for a preliminary injunction. [2]

District court decision

On August 17, 2004, the U.S. District Court for the District of Columbia denied WRTL's motion for a preliminary injunction that would have exempted certain WRTL broadcast ads from the ban on corporate funding of electioneering communications.

The three-judge court rejected WRTL's motion for a preliminary injunction, finding that it did not demonstrate that: (1) WRTL had a substantial likelihood of success on the merits; (2) WRTL would suffer irreparable harm in the absence of an injunction; (3) an injunction would not cause substantial injury to other parties; and (4) the public interest would be furthered by the injunction.

Substantial likelihood of success on the merits

In McConnell, the Supreme Court upheld the EC provisions of the BCRA in their entirety. Furthermore, the reasoning of the court left no room for the kind of "as applied" challenge brought by WRTL. The Supreme Court expressly stated that it upheld all applications of the primary definition of electioneering communication, suggesting little likelihood of success for an "as applied" challenge to a particular application of that definition. This deliberate upholding of "all applications" stands in contrast to the court's explicit acknowledgment that other parts of the statute, which it also upheld. might be subject to "as applied" challenges in the future.

Plaintiff would suffer irreparable harm if an injunction is not granted

The court concluded that the actual limitation on WRTL's freedom of speech is not nearly as great as WRTL had argued. WRTL is not precluded from forwarding its message or from exposing the public to the advertisements at issue, and BCRA does not prohibit the speech in question, only requiring that corporations and labor organizations engaging in such speech channel their spending through PACs. In McConnell, the Supreme Court noted that corporations remain free to organize and administer separate segregated funds for the purpose of financing electioneering communications.

An injunction would not cause substantial injury to other parties

It is the statutory duty of the FEC to enforce the BCRA. To the extent the injunction is entered, the FEC could not properly perform this duty, which is a substantial injury to the FEC.

Public interest would be furthered by the injunction

The Supreme Court has determined that the provisions of the BCRA serve compelling government interests. McConnell, 124 S. Ct. at 695-96. As a result, interference with executing BCRA by enjoining its enforcement does not further the public interest

The district court further ordered all parties to file appropriate supplemental memoranda addressing the potential dismissal of the matter, and denied WRTL's subsequent request to enter an injunction while WRTL pursued an appeal.

Emergency motion for injunction

Pending its appeal of the district court's decision, WRTL sought an emergency injunction to allow it to broadcast ads designed to influence the votes of Senators Kohl and Feingold on the expected filibuster of federal judicial nominees. While WRTL is a 501(c)(4) organization that does not qualify for any exemption permitting it to pay for ads from corporate funds, it asserted that a number of unique factors indicated that its proposed ads were authentic grass-roots lobbying and not electioneering communications. WRTL further asserted that it met the criteria necessary for an injunction to be granted.

Appeals court decision on injunction

On September 1, 2004, the United States Court of Appeals District of Columbia Circuit granted the FEC's motion to dismiss WRTL's motion for injunction, citing a lack of jurisdiction. Only the Supreme Court has jurisdiction over such an appeal, and the law does not authorize the Court of Appeals to review the case.

Supreme Court decision on injunction

WRTL applied to the Supreme Court for an injunction pending appeal. On September 14, the Supreme Court denied this request, finding that an "injunction pending appeal barring the enforcement of an Act of Congress would be an extraordinary remedy, particularly when this Court recently held that Act facially constitutional." According to the Court, WRTL "failed to establish that this extraordinary remedy is appropriate."

FOOTNOTES:

[1] Commission regulations provide an exception allowing "qualified nonprofit corporations" to pay for electioneering communications. 11 CFR 114.2(b)(2). However, WRTL alleges that it does not meet the definition of a qualified nonprofit corporation. 11 CFR 114.10.
[2] The Bipartisan Campaign Reform Act of 2002 (BCRA) provides for such expedited review of constitutional challenges to its provisions. See BCRA 403, 116 Stat. at 113-114.

Source:   FEC Record — August 2007; February 2007; October 2006; March 2006; November 2005; July 2005; October 2004; September 2004.

Supreme Court (06-969 and 06-970)

Court decisions:

• Decision affirming District Court's order (06/25/2007)

Related documents:

Briefs on the merits

• Reply Brief for Appellant Senator John McCain, Representatives Tammy Baldwin, Christopher Shays and Martin Meehan (April 2007)
• Reply Brief for Appellant FEC (April 2007)
• Brief for Appellee WRTL (March 2007)
• Brief for Appellant FEC (February 2007)
• Brief for Appellant Senator John McCain, Representatives Tammy Baldwin, Christopher Shays and Martin Meehan (February 2007)

Amicus briefs in support of appellants (FEC)

• Brief Amici Curiae of Norman Dorsen, Aryeh Neier, Burt Neuborne and John Shattuck (Brennan Center) in Support of Appellants (February 2007)
• Brief for Amici Curiae the League of Women Voters of the United States, Common Cause, Inc., the Greenlining Institute and United States Public Interest Research Group in Support of Appellants (February 2007)
• Brief Amici Curiae of Richard Briffault and Richard L. Hasen in Support of Appellant and Inervenor-Appellants (February 2007)
• Brief Amici Curiae of Committee for Economic Development, Norman Ornstein, Thomas Mann, and Anthony Corrado in Support of Appellants (February 2007)

Amicus briefs in support of appellees (WRTL)

• Brief of the Republican National Committee as Amici Curiae Supporting Appellee (03/23/2007)
• Brief of Amici Curiae, National Rifle Association in Support of Appellee (03/27/2007)
• Brief of Family Research Council, Free Market Foundation and Home School Legal Defense Association as Amici Curiae in Support of Appellee (03/23/2007)
• Brief Amici Curiae on Behalf of the Alliance for Justice (03/23/2007)
• Brief of the American Federation of Labor and Congress of Industrial Organizations as Amici Curiae in Support of Appellee (03/23/2007)
• Brief of National Association of Realtors as Amici Curiae in Support of Appellee (03/23/2007)
• Brief Amici Curiae of Citizens United, Citizens United Foundation, Gun Owners of America Inc., Gun Owners Foundation, Joyce Meyer Ministries, Conservative Legal Defense and Education Fund, Free Speech Coalition Inc., Free Speech Defense and Education Fund Inc., Lincoln Institute, Public Advocate of the United States, Downsided.org and Downsize D.C. Foundation in Support of Appellee (03/23/2007)
• Brief of Amici Curiae, the Center for Competitive Politics, the Institute for Justice, Reason Foundation, the Individual Rights Foundation and the Cato Institute in Support of Appellee (03/23/2007)
• Brief of a Coalition of Public Charities as Amici Curiae in Support of Appellee (03/23/2007)
• Brief of Amici Curiae, Chamber of Commerce of the United States in Support of Appellee (03/23/2007)
• Brief of United States Senator Mitch McConnell as Amici Curiae in Support of Appellee (03/23/2007)
• Brief Amici Curiae of the American Civil Liberties Union in Support of Appellee (03/22/2007)
• Brief Amici Curiae of the American Center for Law and Justice and Focus on the Family in Support of Appellee (03/23/2007)

District Court (04-1260)

Court decisions:

• Order granting WRTL's Motion for Summary Judgment (12/21/2006)
• Memorandum Opinion Denying WRTL's Motion for Temporary Restraining Order and Preliminary Injunction (09/13/2006)

Related documents:

• FEC's Opposition to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (08/31/2006)
• FEC's Reply in Support of its Motion for Summary Judgment (08/18/2006)
• FEC's Exhibits in Support of its Motion for Summary Judgment (08/18/2006)
• FEC's Motion for Summary Judgment (07/14/2006)

Supreme Court (04-1581)

Court decisions:

• Per Curiam decision (01/23/2006)
• Docket for WRTL v. FEC (05/25/2005)
• Order Denying Injunction (09/14/2004)

Related documents:

• FEC's Brief (December 2005)
• WRTL's Motion to Dismiss or Affirm the District Court's Dismissal of its Constitutional Challenge (07/27/2005)
• Opposition of FEC to Application Pending Appeal (filed by Solicitor General 09/13/2004)
• Summary, from the FEC Record, October 2004

Appeals Court (04-5292)

Court decisions:

• Order of DC Circuit Court (09/01/2004)

Related documents:

• FEC's Combined Opposition to WRTL's Emergency Motion for an Injunction Pending Appeal and Motion to Expedite Disposition (08/27/2004)
• FEC's Motion to Dismiss for Lack of Jurisdiction (filed 08/27/2004)

District Court (04-1260)

Court decisions:

• Memorandum Opinion and Order (05/09/2005)
• Memorandum Opinion and Order dismissing case (05/09/2005)
• Order dismissing case (08/17/2004)
• Memorandum Opinion and Order denying request for preliminary injunction (08/14/2004)

Related documents:

• FEC's Motion for Summary Judgment
• Summary, from the FEC Record, September 2004
• FEC's Opposition to Motion for Preliminary Injunction (08/09/2004)
• Amended Verified Complaint for Declaratory and Injunctive Relief (September 2004)
• Verified Complaint for Declaratory and Injunctive Relief (07/28/2004)