Recently two courts ruled against the Christian Civic League of Maine (CCL) in its challenge to the ban on corporate financing of electioneering communications. On September 27, 2006, the U.S. District Court for the District of Columbia granted partial motions to dismiss and for judgment on the pleadings, and dismissed all other CCL claims as moot. On October 2, 2006, the Supreme Court dismissed as moot CCL’s appeal of the district court’s May 2006 denial of a preliminary injunction.
CCL is a nonprofit corporation organized under section 501(c)(4) of the Internal Revenue Code that allegedly engages in some business activity. CCL wanted to use its general treasury funds to broadcast a radio ad prior to a 2006 Senate vote on a particular proposed constitutional amendment. The ad identified Senator Olympia Snowe by name and was to air in close proximity to her June 13, 2006, primary election. If the ad had aired in Senator Snowe’s state within 30 days prior to her primary (or 60 days prior to the general), it would have qualified as an electioneering communication (EC). 2 U.S.C. 434(f)(3)(A)(i). Under the Federal Election Campaign Act (the Act), as amended by the Bipartisan Campaign Reform Act, corporate funds cannot be used to finance an EC. CCL’s suit contends that this financing restriction prevents it from exercising its First Amendment right to free speech.
The Supreme Court upheld the electioneering communications provision in McConnell v. FEC, stating that, although the provision might apply to some so-called “issue ads,” it is narrowly tailored to meet a compelling government interest. 540 U.S. 93, 206 (2003). After McConnell, the Supreme Court held in Wisconsin Right to Life v. FEC that McConnell had not foreclosed all as-applied challenges to the electioneering communications provision. 126 S.Ct. 1016, 1018 (2006).
CCL did not broadcast its proposed ad, and the Senate voted on the legislation it referenced in early June 2006.
District Court decision
The district court dismissed CCL’s request for a permanent injunction to prevent the FEC from applying its EC rules to CCL’s proposed ad, concluding that the Senate’s vote on the legislation referenced in the ad had rendered the issue moot. CCL contended that its situation fit within the “capable of repetition, yet evading review” exception to the mootness doctrine. The court disagreed, noting that CCL’s claims were closely tied to the facts surrounding the spring 2006 ad, circumstances that were unlikely to recur and would not necessarily evade review even if they did recur.
The court further granted defense motions for dismissal of CCL’s claims about possible other ads because they were not ripe for review and were too speculative. CCL admittedly had no firm plans to create or distribute any future ads besides the spring 2006 ad. The Constitution requires an actual “case or controversy” for the court to decide, so a party’s grievance cannot be solely hypothetical. U.S. District Court for the District of Columbia, CV06-0614 (JWR, LFO, CKK).
Supreme Court decision
On October 2, 2006, the U.S. Supreme Court dismissed as moot CCL’s appeal of the district court’s May 9, 2006, denial of a preliminary injunction. 529 U.S. 05-1447 (Oct. 2, 2006); see June 2006 Record.